I am always surpised at how many legal experts and lawyers get things spectacularly wrong when they write for newspapers or comment on current affairs matters. Don’t they read the relevant sections of the Constitution, the applicable Acts and the case law on those texts? If they do, are they willfully misleading the public or merely intellectually a bit slow?
A case in point is the lawyer for Judge President John Hlophe,Vuyani Ngalwana, (whom I praised last week but really now am deeply disappointed with, given the fact that he has shown himself so unaware of the basic legal and constitutional issues surrouding the Zuma matter and seems to have insulted my professional integrity as well).
Ngalwana, who is allegedly an advocate, argues in an article in Sunday Tribune and again in the Cape Times today that the decision of the NPA to drop charges against Zuma cannot be set aside by a court.
He says that in a case concerning a bid to stop Parliament from passing legislation dismantling the Scorpions, the Constitutional Court ruled it could not interfere with the constitutional function of Parliament. Now, he says, the main opposition party runs to a lower court asking it to interfere with a constitutional function of the prosecuting authority.
That could be dismissed as a stunt to be expected from an opposition political party during the election season. But senior members of the Bar have now appeared on television encouraging this stunt, thus raising questions of political embedded-ness.
He says they know that a decision by the prosecuting authority to prosecute or not does not constitute administrative action and so cannot lawfully be taken on judicial review, and adds:
So why, against their better judgment, do they give this stunt a semblance of legitimacy? Opposition political embedded-ness would seem to be the only reasonable explanation. While nothing is wrong with that, they must tell the public so that it does not wallow in the false belief that theirs is an objective professional opinion when it may well not be.
Well, this is so spectacularly and embarrassingly uninformed that if I was Hlophe I would refuse to pay the legal fees for the work already done in that sad and hopeless matter before the JSC. Did Ngalwana even read the Constitution, the relevant case law or the relevant sections of the Promotion of Administrative Justice Act (PAJA) before putting pen to paper? If he read them, why did he not understand them?
So, a quick lesson for Advocate Ngalwana is in order. (I take the time to assist Comrade Ngalwana because I assume his utter lack of understanding of the law is genuine and is not disguising a burning ambition to serve in a high position in a Zuma government or the judiciary).
First, section 1(b)(ff) of PAJA states that “a decision to institute or continue a prosecution” is not administrative action. In the Nicholson judgment this was interpreted to mean that while PAJA excludes a decision by the NPA to institute or continue a prosecution from its ambit, it does not exclude a decision to drop charges (in other words, not to continue with a prosecution.) This means a decisision to drop charges may not be excluded from administrative action and can be reviewed.
Now, although this is the most plausible interpretation of the section, one might perhaps argue that a decision “to continue with a prosecution” also includes a decision not to continue with it. I will even concede that it is possible that Nicholson might even have been wrong and that the textually more strained interpretation is better for policy reasons. But at best, this means one cannot categorically state, as Ngalwana does, that a decision to drop charges against an accused is excluded from PAJA.
But that is really not the biggest blunder made by a man who claims that those who hold a different view from his uninformed and embarrasing views are doing so because they are embedded with a political party. (In phsycological terms one would call this transference: see in others what you do not want to admit in yourself.)
He clearly does not understand that the Scorpions case is utterly irrelevant for the present matter and the arguments made by lawyers like myself about why the decision of the NPA may be reviewed. Maybe he should go and read the Doctors for Life, Matatiele and Merafong judgments of the Constitutional Court again. (I say again, because out of the kindness of my heart I assume he has actually read them.) On second thoughts maybe he should read these cases twice each. It might sharpen the mind and stop future public embarrasment and humiliation.
In these cases the Constitutional Court made it very clear that where the Constitution prescribed to Parliament HOW it had to exercise a function or a discretion, the Constitutional Court had every right to “interfere” with the work of Parliament. In such cases the Constitutional Court can declare the Act of Parliament invalid, which they did in Doctors for Life because Parliament had failed to follow the prescribed procedure set out in the Constitution for passing laws because it had not facilitatated public involvement in the lawmnaking process as required by the Constitution.
So, chickens, slowly now (advocate Ngalwana, are you still with me?) remember section 179(5)(a) of the Constitution? It states that the National Director of Public Prosecutions must determine, with the concurrence of the Cabinet member responsible for the administration of justice, and after consulting the Directors of Public Prosecutions, prosecution policy, which must be observed in the prosecution process.
So, this is a Constitutional duty placed on the NPA to observe the policy in the prosecution process – very much like the duty placed on Parliament to facilitate public involvement when it makes laws is a constitutional duty. A Court has every right to “interfere” with such a decision if it was not done in accordance with the constitutional prescription set out in section 179(5)(a).
This is – to me at least – so bloody blindingly obvious and the arguments used by Ngalwana so absurd and lazy that (to use a phrase allegedly stolen by Mpshe from a Hong Kong judge) it shocks the conscience.
I dare advocate Ngalwana to a public debate on the legal issues involved. We can also debate who is really embedded with a political party and who is giving bad legal opinions because of such embeddedness. Let us see who is correct in their interpretation of the law and the Constitution. We can even get an independent panel of judges to adjudicate a winner and the loser will have to give one month of his salary to the winner.
As I will win, I hereby promise to donate my winnings to a charity of my choice. Maybe I will start my own charity: “The Vuyani Ngalwana Education Trust”. He sure as hell need some education.
I read the article in the Cape Times, although I find it difficult to read obvious spin and often quit in disgust part way through. The problem is dear professor, the lady Justice is deeply wounded and there’s little chance the Dept of Health will be able to heal her after the election, what with all their shortfall in funding, et al. And certainly the Dept of Justice isn’t up to it.
What to do. Could we appeal to Winnie on a feminine issue?
Hardly likely. Perhaps we should send sweet Justice to a Spa for a rest, anesthetize her for the next five years and hope to revive her in 2014.
This is in poor taste.
Ngalwana’s article was not good, mostly because the promised to give reasons why the decision was right – and then proceeded to dodge that self-assumed responsibility and state instead (without reasons, I agree) why it was not subject to review. Yes, he dishes out insults to people who differ from him, which is not good, and for which he should be challenged.
But do you elevate your discourse above his by being this snide? Do you show him the error of his name-calling ways by challenging him to a chest-puffery where we will see ‘who is really embedded with a political party’?
Please, we come to your blog for your academic insights. Just tell us why you think he is wrong and leave it at that.
“Please, we come to your blog for your academic insights. Just tell us why you think he is wrong and leave it at that.”
Speak for yourself.
I come to this blog not only for the academic insights, but also to release some of the fury that builds up from having to see what is happening to our country and how it is being supported by supposedly reasonable individuals who, quite obviously, are tossing their pearls before the swine in exchange for the riches that wait on the other side of April 22.
(Aren’t they embarrassed?! The same bunch of people surface over and over again.)
Pierre tells it like it is, which is more satisfying and entertaining than the measured observations in the mainstream press, yet not stupid, knee-jerk, uninformed verbal dumping.
We can learn AND be entertained.
I find that super refreshing.
Ummmm, Pierre, PAJA is the Promotion of Administrative Justice Act…
Ismail @ 5:44 pm
“Please, we come to your blog for your academic insights. Just tell us why you think he is wrong and leave it at that.”
LOL –
I come to this blog precisely because of the “opposition political embedded-ness”.
Man do these lawyer types have a way with words. No wonder they are so well payed ?
Alright, I’ll take that on the chin: I speak for myself alone.
I find it frustrating having to winnow the corn of learning from the chaff of invective. Perhaps I am alone in this.
This was also my frustration with Ngalwana’s article. I winnowed away, and all I had was chaff and bad manners. I had hoped that Pierre could raise the tone.
I also find it hard to argue with people (like Mzo, I think – I may be wrong – and others) who ascribe malice to Pierre. Why else would he be so demeaning? Why say to a man who has publicly thrown his intellectual hat in the ring ‘advocate Ngalwana, are you still with me?’. Why take the low road?
I also suspect that Ngalwana feels justified in his views when the response to them is so shrill. ‘Why’, he probably asks himself (if he reads this blog, which he probably doesn’t) ‘would they react like that if I have not struck a cord. I must be right. If I was wholly wrong they would say so and leave it at that?’ And Ngalwana wouldn’t be alone in that either.
What is happening to our country is partly caused by a culture of violent rhetoric. It isn’t enough to say someone is wrong, he must also be evil. People’s views are never incorrect, they are caused by their hatred. It isn’t enough to disagree with someone, one must also say you will kill him. It isn’t enough to reject the other’s argument, one must also try to humiliate her. And when ‘words will never harm you’, sticks and stones are next.
But as you say, you come here to release your fury.
I stand rebuked.
PdV
“Maybe I will start my own charity: “The Vuyani Ngalwana Education Trust”.”
How about a charity called the “The Friends of Bulelani and Phumzile Mlambo-Ngcuka Trust” ?
Come on Pierre – Leonard McCarthy can be the chairman, Mzi Khumalo can be the treasurer and you can become the media spokesperson.
@ Ismael,
While I don’t entirely agree with your sentiment (I enjoy Pierre’s often irreverant posts), I do agree with your third last paragraph. Our country has descended into a schoolyard mindset where children fight and bicker and name call all in the name of one-upmanship. It is rather tiresome and intensely childish.
However, I find that Pierre’s posts are informative and challenging and allow both legal professionals and lay people the opportunity for discourse, which is not readily available elsewhere.
I often disagree with the views on this forum, but I never fail to learn. And I very often get to laugh. Mrs Smith may come here to vent her fury, but I come here to dissipate mine, along with my frustration and feelings of futility at the behaviour of our leaders and their followers.
Umm, am I missing something, but what is wrong with being part of “opposition” politics? Can somebody give an actual reason?
But then, most of the accusations in this regard are not valid. To criticise theincumbent government does not (logically) imply being involved with opposition politics.
“A court has every right to “interfere” with such a decision …”
But Pierre, KZN Judge President Vuka Tshabalala agreed with the withdrawal of the charges against Jacob Zuma. He highlighted and reiterated the basic principle that it is not for courts to interfere with decisions made by the prosecution authority – particularly in this case in which the NPA had “applied its mind” after representations by Zuma.
Clara,
Do you think the NPA applied its mind, and if so why?
Prof, while I take stock of your argument and find it fairly reasonable – excluding the sarcasm of course, I do have a couple of common sense questions regarding the so-called right to interfere with NPA’s decisions by the courts: 1. Is it the NPA or the courts that prosecute? 2. Linked to 1, Say in the event the North Gauteng court were to find in DA s favour, is the court likely to force (so to speak) the NPA to prosecute the case that they (NPA) want to prosecute anymore, and what would that mean legally ?? OR is the court likely to instruct the NPA to review its decision and try and follow the “prosecutorial policy” that time around? Coz to me, you cant force the NPA to prosecute on the case they dont want to prosecute on – it just doesnt make sense!
Well said, Ismail. Unfortunately the stench of corrupt politics seems to contaminate all it touches and it seems even Pierre is not immune.
In which I admit I find some cold comfort because I find myself thinking the darkest thoughts too when viewing recent developments.
I think Ngalwana is simply playing clever politics at the behest of Slippery Hlopes – marrying the Hlope case to that of JZ is good strategy (for Hlopes, not for Zuma) in the current environment.
The “stop Zuma” DA campaign. Racial polorisation anyone? Harks back to the “fight back” campaign a few elections ago, and I don’t think it is very good strategy – strikes a chord with the converted but will simply reinforce the idea that whites/the DA regard Zuma/blacks as incompetent Mugabes. It is not going to be a black vote-getter methinks.
andre, YES cos it took them about 3wks to release a statement when there were already all sorts of reactions, legal analysis etc on the possible dropping of charges, surely they must have been consulting and indeed APPLYING THEIR MINDS during that period of hyper speculation!
Clara, I think that you are buyinh into ANC opropaganda here. The court cannot, of its’ own initiative lauch actions or reviews or “questioning” of executive decisions. The Tshabalala “agreement” was a non-event – it was mere procedure.
however, “interference” by courts can come if someone brings an action, like the DA has, and like Doctors for Life did when Parliament did not meet the constitutional requirements for passing Acts.
@ Peter,
Sorry, but I fail to see where “Stop Zuma” is racist, or would enhance racial polorisation. If anything, your comment merely indicates that you equate Zuma with black incompetence and Mugabe.
Zuma has over the past few months managed to avoid his day in court, threatened the judiciary and their constitutionally entrenched independence, stated that Afrikaners are the only true white South Africans, threatened freedom of the press etc etc. For opposition parties and their supporters, Zuma is a perceived threat to our constitutional democracy and many fear that a two-thirds majority would see the demise and destruction of the rule of law in this country. Accordingly, by calling for voters to “stop Zuma”, the DA are merely reinforcing the need for all registered voters in this country to vote and ensure that the ANC do not get the two-thirds democracy that could allow this to happen.
Whether or not the campaign will garner black votes remains to be seen. However, I believe that one week before the election, there are very few “undecideds” and I doubt that those who have already decided are going to change their allegiance based on a set of posters.
Samantha @ 10:49 pm
“For opposition parties and their supporters, Zuma is a perceived threat to our constitutional democracy and many fear that a two-thirds majority would see the demise and destruction of the rule of law in this country.”
Nothing new then ? The ANC has always been seen as a threat to “our democracy” LOL
What I do find obnoxious though is the DA cellphone spam imploring me to vote for them in order to “stop Zuma” and Zille’s racist assumptions about the “whites’ who are supposed to be voting for her party.
If this is true is massive.
Politics web claims its has evidence Mpshe plagiarised his Zuma statement.
http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page71619?oid=125134&sn=Marketingweb+detail
I meant to say that if its true it *is* massive.
Spuy – taking three weeks to try rationalise and spin an irrational decision does not constitute an application of the mind.
Samantha – as you have confirmed, Zuma is held up to be the end of all we hold near and dear, the new swart gevaar, and must be stopped. I am not thrilled with our new president, and am all for highlighting of the dangers posed by the new regime, but we can do without inflammatory hysterics given the recent history of this country.
Wessel – why is it massive? – the Zuma statement must be examined on its own merits. If bits and pieces were taken from another relevant judgement it indicates Mpshe was perhaps a bit lazy, but my sense is that the law is built to a large extent on precendent – Mpshe was not writing a novel or a song after all.
The question we need to ask is: what is the state of justice in South Africa? Is it real? Is it an illusion? Does it matter?
Peter @ 11:51 pm
Precedent. Exactly. And what happened with that earlier judgement? It was overturned by another court. But here of course the ANC and all of Zuma’s supporters are yelling that it’s all over. Finish and klaar. Zuma is entirely vindicated and the NPA’s decision is final and cannot be challenged.
OK
In a detailed analysis this report claims much of the reasoning for the case were lifted, either verbatim or changed from a Hong Kong Court case which was later over turned on appeal.
The appeal court noted that the court must take account -
“of the public expectation that persons charged with serious criminal offences will be brought to trial unless there is some powerful reason for not doing so.”
Perhaps not massive in the soap opera world that is Sa, but this will do nothing for the NPA’s credibility.
Ishmael, you have a point. I always walk a fine line between being informative, reasoned and logical and doing some verbal gymnastics to ensure what I write is entertaining and that people continue reading what otherwise could be rather dry legal discussions. I was just so incencensed with Ngalwana who, instead of making reasoned legal arguments went the ad hominem way and took it a tad personally, so might have overreacted just a tiny bit. In my defense: the post do say why I disagree with Ngalwana though and does so with reference to legal principles and the like.
Spuy, the court cannot tell the NPA what decision it must take, thus cannot force the NPA to prosecute Zuma. It can declare a decision of the NPA invalid because that decision was not taken in accordance with the Constitution (which would be the application to be brought by those challenging the NPA’s decision). In the absence of such an application Tshabalala had no choice I think but to withdraw the charges. If such an application is succesful – and this will depend on whether a court found that the prosecution policy was not adhered to – the ball will then be back in the NPA court and the original decision to prosecute will stand unless the NPA came up with a decision that is in line with the Constitution and the law. Thus the Court will respect the NPA – another rogan of state – while still vindicating the Rule of Law.
The point about Mpshe’s ‘plagiarism’ isn’t that he stole someone else’s words. Judgments are not copyrighted (except perhaps to the extent that the editor of a law journal corrects or summarises them). They are meant to be in the public domain and judges have no moral right to assert. Cases, when they are cited, are cited not for copyright reasons, but to imbue what one says with authority – our higher courts decisions have precedential value.
Weaving judges’ words into affidavits, contracts and heads of argument – even unattributed – is normal and appropriate.
The issue is this: the fact that its phrases litter his reasons means that he knew about the case.
Odds are it was discussed in the first draft that he was given by whoever gave him a first draft (Billy Downer?)
The original case supported his case, so if he knew only the original case he would presumably have cited it. He none-the-less doesn’t cite it. Why? Presumably because he knew that it was overturned on appeal and that the case overturning him did not support him.
My guess is that the first draft discussed the case, and its being overturned and he stripped that detail out – leaving only the words that James Myburgh (who was, by the way a DA researcher – not sure what he does now) found.
Ismail @ 7:17 am
“The point about Mpshe’s ‘plagiarism’ isn’t that he stole someone else’s words. Judgments are not copyrighted (except perhaps to the extent that the editor of a law journal corrects or summarises them).”
It appears like a clear cut case of plagiarism to me. Plagiarism and “copyright infringement” are not the same things. Plagiarism means he used another judgment without mentioning the original source or the appropiate references crediting to the original judgement.
Whether the reasons for dropping the charges were plagiarized from a similar judgment or not makes no difference to the reasoning behind the decision, and the fact that the Seagroatt judgement was overturned on appeal is also irrelevant since the circumstances are different.
In all Mpshe took the right decision. As I pointed out plenty of times – the fact that Ngcuka was still running the NPA in 2007 and behind the scenes probably scared the shit out of him. Who knows what else transpired with Ngcuka and McCarthy during all those years – does he really want to open that can of worms ?
The problems with the Hong Kong case is that it cannot serve as a legal foundation, given that it was overturned. The fact of not citing it also shows that the authority is not being relied upon.
Therefore, the logic of the case is being used. The concurrence of the words is not that relevant if the logic stands. But does the logic stand? As has been pointed out, the Lord Steyn comments cited did not result in a prosecution being stayed.
Unless the logic can self-evidently apply here, then the use of words like “unconscionable” becomes somewhat suspect.
In any event, if the courts have standing to review the decision, this will merely add fuel to the flames of the lack of rationality of the decisio.
When Mpshe first made his reasons public for the dropping of chargesI noted the array of irrelevant commonwealth precedent and the quotes from the House of Lords and commented that as we are not a colony of Britain, as we have a written Constitution (that pesky section 179(5)(a) again) and Britain not, the reasoning seemed odd and irrelevant. NOw we know why. Why not mention the section of our OWN constitution which is supposed to guide the decision? Why rely on an overturned Hong Kong case? We would not know because we are not privy to the discussions inside the NPA but one possible explanation would be that Mpshe (who said that he was under “time constraints” to make the decision – just in time for the election?) had been pursuaded to drop charges and was frantically looking for a legal fif leave. Turns out the fig leave was the proverbial Emperors cloak.
“In all Mpshe took the right decision”
I guess we’ll have to wait and see. It may take a long time though. Like bull markets and bear markets, public confidence in institutions builds up slowly, but is lost quickly.
Pierre
I think you are right. If he had put forward halfway-decent reasons, I would give him the benefit of the doubt, but his reasons are so poor it beggars belief.
I suspect the ANC will rue this come election night.
prof and your team, you are doing commendable work.i am not in the field of law, but your lively discussions on this blog actually open my mind and improve my understanding of legal issues transpiring in South Africa at the moment. my many thanks to the professor PDV, Ismail,Sirjay Joson,mrs smith,libden, ozoneblue,samantha, mike atkins, clara, andre wayne, spuy,dave a,peter,wessel van rensburg.
thank you guys
Ozoneblue
“Whether the reasons for dropping the charges were plagiarized from a similar judgment or not makes no difference to the reasoning behind the decision, and the fact that the Seagroatt judgement was overturned on appeal is also irrelevant since the circumstances are different.”
This simply just does not make sense….
there is a big difference im afriad because it goes to show that Mpshe did not apply his mind……….my guess is he just googled it………..thats as far as his mind was applied.
which will make the case to overturn the NPA statement just that much stronger.
one of the main points to argue did Mpshe apply his Mind………..the answer is NO factually does not avail Zuma
“the fact that the Seagroatt judgement was overturned on appeal is also irrelevant since the circumstances are different.”
if the circumstances are different then the judgement is different?….he may as well quoted something from the Simpsons as that is just as irrelevent…
point is read the judgement the circumstances is actually similar please get your information straight esp on abuse of power by the prosecutor.
and I would like to quote from the SCA of Hong Kong since its fitting that Mpshe should use the high court judge I think its just as fitting to use the SCA
“In these circumstances, the judge’s exercise of discretion was vitiated. Bearing in mind the facts and circumstances already discussed above, I would exercise my discretion against a stay on either the abuse of power or prejudicial publicity ground. There is every reason to believe that the respondents will be able to receive a fair trial by an unprejudiced jury properly directed”
put that in your pipe ans smoke it.
The fact that he googled and then plagiarised a court ruling which did not hold up to appeal shows he did not apply his mind at all. Welcome to South Africa, where we disregard the constitution in favour of sparknotes.
I’m baffled as to why no state institution has found it necessary to prosecute both Bululani or McCarthy? If the evidence presented by the NPA was good enough to drop charges against Zuma, certaintly,interfering with the prosecutorial processes should warrent a more serious response than just a commission of enquiry.
Hats-off to vOzoneblue and Spuy for always seeing through Pierre, and I think the “Bulelani-Phumzile Ngcuka Trust” will fit the Prof, as its spokepersona!
lol you 3 make such a cute couple
Mdu @ 12.15
“Hats-off to vOzoneblue and Spuy”: I see that blind devotion/allegiance extends beyond Zuma to the rank and file too.
I think this case of plaigarism once again shows up how ineffectual law is at maintaining itself in a society where the norms of behaviour is quite different from the societies in which these legal systems evolved.
I don’t think that – correct me if I’m wrong – in the entire legal history of the UK for instance a top senior prosecutor has been accused of plagiarism. Similarly I think you’d be hard pressed to find a judge behaving in such a brazen manner as judge president Hlophe.
Were simply at a loss and dumbfounded by these events. And we have no scripts to go by.
We in SA have no international precedent in dealing with an errant judge or a lazy prosecutor.
The behaviour of judges and prosecutors are governed far more by non legal rules such as a person’s reputation. And these non laws are normally far more effective in governing behaviour.
The problem is – for a significant section of South African society Judge President Hhlophe’s behaviour is something to be proud of. He knows that.
If it became known that the Head of the Crown prosecution service in the UK had plagiarized a document, the person would have resigned. His reputation is tatters, it would be more so if they did’nt.
I suspect Mpshe on the other hand will become entrenched in his position as top prosecutor in the land. His only misdemeanor in the eyes of most South Africans – that he was caught out.
But thy will think – it was for a good cause.
Hi everyone – I’m late in here (been on leave in Namibia – savouring the aridness of the dessert and doing fishing on the Skeleton Coast, rather than sitting here in the park and watching the political grass grow).
Prof – Good post and (defensive) line of argument – ‘attack is the best form of defence’. One typo in your initial post though: ‘A Court has every right to “interfere” with such a decision if it was not done in accordance with the constitutional prescription set out in section 179(1)(a).’ = I take it the (1) should actually read (5) as the whole article is about s 179(5)(a), isn’t it?
I think Mpshe took the wrong decision. If there is a case for Zuma to answer (and according to all objective indications, there is!) — it is a case that has to be taken to court regardless of whether the decision at first not to prosecute (or the later decision to reinstate prosecution) were subject to political influences. Billy Downer said it right when he voiced his dissagreement with Mpshe’s decision. This decision to withdraw the charges against Zuma creates the impression that Mpshe is but a Moko-’teddy’ in the hands of the Zuma camp. Perhaps we should have a similar system than in the US, where the top NPA members are ‘elected’, and not appointed by the government of the day. Then voters will most probably take their eyes off political party-politics and focus on the real issue, namely whether the NPA is properly defending society and the Constitution, or whether it is merely toeing the line of the government of the day (which constantly seems to confuse state and party).
On a side note – Khosi, what do you say about Mbeki’s lambastment by the Zuma camp yesterday?
Wessel van Rensburg (AKA mhambi) // Apr 15, 2009 at 2:07 pm
“The problem is – for a significant section of South African society Judge President Hhlophe’s behaviour is something to be proud of. He knows that.”
You must be one of the few individuals who has the unique ability to read the minds of others to have the temerity to make such a deduction.
Firstly, it is deeply concerning that many of our institutions are in such compromised positions. It is definitely an indication that there is gross mis management, compounded by corruption and deeply flawed systems.
However, it is important to note that many of the developed countries are not exempt from such incidences. In the US it is well documented that the intelligence agencies provided inaccurate information about IRAQ which led to the US invasion(to which the UK played a pivotal role) , they recently had a senator involved in corruption trying to buy his seat(Barack Obama’s old seat nogals). The UK is notorious for indiscretions visited on them by members of the Royal Family, the so called bastion of propriety. These are but a few examples of how leaders across the world continue to dissappoint.
Does this make it right for S.A to follow in their example, absolutely NOT. However, I think it unfair to portray this beautiful country and its people as “the wretched of the earth”. We need people who have the audacity to winnow the chaff and see a the grain of possibilities that exist. Call me naive, but I would rather hope against hope that by acknowledging that we have messed up, confront the challenges ahead , embracing the values and principiles that so many S.Africans embrace that “this too shall pass”.
hey mouse good to see ur back
Section 179(5) clearly embodies constitutional protections against an unfair, over-hasty, arbitrary or incorrect change of a decision to prosecute or not
the fact that Mpshe and co did not get the full transcripts from the NIA and did not do a full investigation was an over hasty decision
if you read Mpshe statement he claimed more time is needed for a proper investigation.
The decision was also unfair towards McCarthy and Co because they were not given the full transcripts and have been blamed and triad by media and esp the ANC before even given the rights of an accused
Hmmmm…..sadly – the rights and wrongs of review applications aside – our NPA has now shown its true colours. It has no stomach for the prosecution of a prominent politician. This is the real issue and it bodes ill for all of us….
A comment from London…
Wessel, how nice to read something complimentary about the UK on this website! Pierre does give us old colonial Brits such a hard time (but somehow we survive). I will venture a few comments on recent developments and ask for Pierre’s thoughts on some further issues…
Mr Mpshe’s statement in the Zuma matter was, as Pierre has noted, quite remarkable in not referring at all to the relevant provisions of the Constitution.
Under the Constitution, the NDPP clearly does have the right to review decisions to prosecute and it therefore can’t be right to argue that a decision on whether a prosecution should proceed must, in South Africa, always be left to the courts. But where the NDPP is, as in the Zuma case, operating in an acting capacity only, any decision made by him is bound to be open to the charge that it has been made under pressure and cannot be seen to be fair. Absent other considerations, I would have expected this factor to have militated strongly in favour of Mr Mpshe leaving this hugely important decision to the courts, as the prosecution team wanted. Mr Zuma’s lawyers have talked of bringing proceedings for a stay of execution for a long time; they could simply have been allowed to do so.
The fact that this course of action was not chosen by the NDPP, despite his acting position, inevitably fuels exactly the kind of suspicion and adverse comment that the NPA needs to avoid if it is to build its credibility as an independent institution. The fact that the statement contains no attempt to justify the decision being taken by the NDPP rather than the courts (despite the extensive citation of precedents on court decisions on stays of proceedings) is troubling.
When the NDPP decided to take this decision himself, rather than leaving it to the courts, it should surely have been considered essential that he should give the ‘mother of all statements’, legally above reproach. The statement should have indicated clearly exactly what principles the NDPP was applying in reaching its decision under the Constitution. There was nothing wrong in referring to Commonwealth cases, provided that these could be shown to be relevant, but the statement did not convincingly explain the relevance of these common law authorities to the South African situation. (I think in fact an argument can be made for their relevance, but it was not done.) And the statement concealed the fact that these authorities emphasise that, in balancing the competing public interests at stake, it will only be in very rare cases that a prosecution will be stayed by a Commonwealth court, especially where a fair trial is still possible.
It’s also quite extraordinary that the statement didn’t even try to deal satisfactorlly with the comments of the SCA on the relevance of motive/purpose.
The concealment of the identity of the Hong Kong judgment is disturbing if it simply indicates plagiarism or professional incompetence, but it’s of course deeply concerning if it indicates an attempt to bolster the NDPP’s argument in an unfounded and/or underhand way.
The NDPP’s decision has been made now, and I’d be glad to know your thoughts, Pierre, on the applicable standards for review of the decision by the courts.
Anonymouse: welcome back, I already thought you were mired in despondency about the state of affairs in ‘Suvvafrica’ and had left us forever … by the way, “dessert” is the la-di-da word for pudding …
Missed you too mousie
Perhaps Messrs Mpshe and Hofmeyer could submit their full telephone records for January to April (personal and work phones) for examination of conversations that they may have had with persons connected to Mr Zuma.
Maybe the “plot” shoe would be on the other foot…
As a working hypothesis, how’s this:
Through some combination of threat, political persuasion and / or inducement, Mr Mpshe was “persuaded” to discontinue the prosecution. Mr Hofmeyer may already have been influenced (did he know about the tapes earlier?) prior to the fact, so that he could sway Mpshe.
They were hoping for a quick “in-and-out” announcement, possibly without giving specific reasons, or maybe making vague references to “national interest”. Then the story was leaked. We don’t know that Mo Shaik got it from the Zuma camp – he claimed to have received general sms’s that were doing the rounds. Anyway, Business Day was breaking the story (possibly from a disgruntled member of the NPA).
The outcry , and subsequent analysis (including our dear Prof), gave the NPA pause. The shock value of the tapes was being played up, but the pressure now came from both sides.
So, our clever little Mr Hofmeyer went and did some research to find anyone saying anything nasty about abuse of process that they could use. as had been pointed out here and elsewhere, the NPA Act and the policy gave nothing to work with. I also wonder whether Adv Heath had a talk to Adv Hofmeyer.
Then came the announcement, and immediately the Zuma clique in the ANC started to spin the “inncent” line (Mr Phosa and Mr Zuma lying to the nation abpout what had happened). The ANC knew beforehand because they were telling us (via Ms Duarte among others) that we should “respect” the decision – code for “shut up, or we will accuse you of undermining the rule of law”.
The other “spin” is that those who challenge the decision are merely demonstrating their “hatred” of Mr Zuma.
Aliveandlovingit! says there is corruption in developed countries as well. I don’t disagree.
The difference can be said is the number of incidents or perhaps their brazen nature or severity or even who commits them (even though the Royal family is gaffe prone & over and under sexed they have not been involved in many corruption scandals as far as I know). Perhaps.
But countries like India and China also have a lot of corruption. But its not eating at their body politic as ours is.
But India and particularly China punishes corrupt officials very harshly – the death penalty is quite common.
That is the key difference. And it is multi-faceted. Not only is our state not too concerned about it (unless a political opponent is involved) but more importantly – the vast majority of citizenry does not think less of a politician or powerful person for making a packet through corrupt dealings.
I make this assertion based on the book “The criminalisation of the state in Africa” by Bayart et al recently recommended by none other than snappy dresser & fast mind Xolela Mangcu.
In it it claims that appreciation of the ‘trickster’ is an Africa wide problem, but has a specific chapter on South Africa.
This is due to a number of reasons, which I wont expand on here now, save to say that its shocking that we have some of the best universities on the continent., that have not studied this.
Instead of studying behaviour patterns & attitudes in our society they have for the last 40 years swallowed hook line and sinker all the Western produced narratives of neo-colonialism as the explanation of all Africa’s ills.
@ Mike A. Whatever actually happened behind the scenes we’ll probably never know, but the latest revelations re Mpshe’s famous speech are damning of the NPA. Mpshe is not a judge but surely he should cite authority correctly and not disengenuously fail to mention that his rationale is based on an over ruled decision? Its elementary stuff and belies their haste to get the decision out a few weeks before the election. Can’t get much more political than that…
Aliveandlovingit! says:
“In the US it is well documented that the intelligence agencies provided inaccurate information about IRAQ which led to the US invasion(to which the UK played a pivotal role) , they recently had a senator involved in corruption trying to buy his seat(Barack Obama’s old seat nogals).”
I’m affraid there absolutely no comparison. Not only did the CIA chief in charge loose his job **during Bush’s term in office ** after a lengthy congressional hearing, but also the senior official mentioned trying to sell Obama seat did not get his way, and was so hounded by all and sundry that he gave up, in spite of his impressive thick skin.
Try some better examples please. Waiting…
Clara (and Friend) – Thanks for the welcome and sorry for the typo (the extra ’s’ in ‘desert’) – but yes, I have not ‘deserted’ my beloved country, ‘SoufEfrica’ (Nam-fe in Mandarin) but, while sitting in the desert sun, feeling the cool Atlantic breeze and reeling in a few oversized kob’s, I felt that I might just be persuaded to trade my loyalty and give up my job (it really could be equated with ‘pudding’ when compared to what we have to face every day in the South African rat-race). But, quitters never win and winners never quit, and I have decided not to defect.
Having said that all, Mokotedi Mpshe is, to my mind, just making sure that he remains in the running to become the permanent NDPP after the election. I mean, when he was appointed acting NDPP, he employed a panel of ‘independent’ experts to check into the Selebi matter, and ’sommer’ also re-evaluated the Zuma thing and, hey Presto! Bothe were then found fit to be prosecuted. Surely the NIA phone-tapping records must then already have been available? One wonders whether Nicholso J did not know about those before he handed down his sorry judgment that there was politrical meddling. And, yes, the SCA did suggest that ‘political meddling’, if found to be present, would not really have been relevant in deciding the issue at hand. But Julius’ fantasy of people moving in the dark, which has been pounced upon by senior ANC members, really seems to have jolted the imagination of many, including ‘Teddy’ Mpshe – so paving the way for JZ to stay out of court without having to disclose the so-called ‘truth’ about who the real ‘movers-and-shakers’ in the Arms Deal were and to become the next President. (By the way, doesn’t his smiling face on the election placards (without the shower) remind one of that TV ad, “I wanna be a Simba Chippy!” – any relation to Chippy Shaik?)
Again – sorry for all the typos and language errors – still struggling with the German and Nama I again polished in Namibia.
Yes, welkom muis!
Oghh… with so many disciples agreeing with the prof (again) I don’t want to be the one to interrupting the mutual masturbation session.
Thanks ozone
I think while debate is good. The attack on Adv Ngalwana is a clear lack of understanding of Ethics on your part, to call a duly admitted Advocate who has tons of experience ‘an alleged’ is not only unethical it also shows total disrespect to fellow collegues. Adv Ngalwana is your senior, not only as an Advocate, but he has also acted as a Judge in the Labour Courts. What have you done besides hiding in your office writing silly articles, marking exams and assignments?. The Nicolson judgment was overturned for your information, therefore its not law anymore. Adv Ngalwana’s submissions on the issue seems to make sense, but one should not say they are wrong hence they must be tested by a court of law. To say Adv Ngalwana has not read the Constitution, the case law on the matter is an insult and falls to be ignored. There is a sizeable difference between practical law and theory law and you seem to to have blurred the difference with your academic opinion. When last did you appear in the High Court to represent a client?