The website Grubstreet has a nice scoop on an issue that many people wish us to sweep under the carpet now that we have had our election. After all, we are now all going to live happily ever after and Mr Jacob Zuma is going to eradicate poverty and unemployment in the next year. That will teach the mother grundies who just cannot seem to forget that our President-elect has a very dark ethical cloud hanging over his head.
Grubstreet reports that Justice Conrad Seagroatt – the man whose judgment was plagiarised by Mpshe to try and justify the indefensible – has suggested that acting National Director of Public Prosecutions, Moketedi Mpshe, was wrong to drop the charges against ANC President Jacob Zuma when he did.
When the judge had initially been contacted by the journalist Gill Moodie, Seagroatt had described Mpshe’s plagiarism of his judgment as “sloppy and undisciplined” based the schedule of extracts published on Politicsweb.co.za. However, at that stage he had not seen the full Mpshe statement itself. In a further email to Moodie, published on the Grubstreet.co.za weblog, Seagroatt made four further criticisms of the NDPP’s decision (according to Politicsweb):
Firstly, he noted that his judgment had been overturned by the Court of Final Appeal in Hong Kong. “In the light of this Mpshe should not only have given proper attribution to the passages in my judgement upon which he obviously relied, but should have explained why he relied upon them in preference to the H.K.C.F.A’s decision. There was certainly room for him to do so.”
Secondly, he stated that the facts of the case he was dealing with were not really applicable to Zuma’s situation. Mpshe’s “own statement is so limited and sketchy” Seagroatt wrote, “that I find it impossible to identify why he was relying on my judgement. In the Hong Kong case the behaviour of the prosecution which I criticised was its failure to disclose material evidence in relation to an expert witness upon whom it relied as pivotal to its case. The first “whiff” of such evidence did not emerge until the jury were considering their verdicts and I had to stop the trial at that stage – a very rare event. The C.F.A. did not disagree with that decision; in effect they approved it.”
Thirdly, and further to this point, Seagroatt notes that “What Mpshe seems to have taken as the justification for his decision was not a material aspect of the trial procedure but a decision made by some branch of the investigative process as to when and where Jacob Zuma should be charged on the basis of political considerations. That is an entirely different scenario. Many might argue that motivation in relation to timing of a charge is very different from manipulation of the evidence available.”
Finally, Seagroatt observed, that such decisions are ones best left to a judge to decide. “It is very strongly arguable that [Mpshe] should have let the trial process begin before a judge, leaving the aspect which seems to have dominated his proper role as the prosecutor (the old adage being a ‘prosecutors’ job is to prosecute) to be determined by the judge with the N.D.P.P. being entirely candid (as he should be) as to the conduct of the investigative and prosecuting agencies.”
Having noted all of this does not mean I was not very impressed with Mr Jacob Zuma’s speech after his election as President in the National Assembly. Compared to the occasional self-important and pompous blathering of Thabo Mbeki, his speech was light, witty and humble. A good start. Maybe if he does not only talk the talk but also walk the walk, over time we will learn to forget that dark cloud hanging over his head and how the National Intelligence Agency and the NPA was abused to get him off the hook.
I am holding thumbs.
This is very interesting that the Judge himself draws the distinction between that case referring to Prosecutors muddying the evidencial waters, and our case of the Prosecution just being skelm around procedural issues.
Personally I think if they were in cahoots at all then they’ve tainted the prosecution because I’d rather the Prosecutors behaved themselves.
What’s going down with the DA’s court case? Have they run aground?
Quite enlightening indeed, I did not listen to Mr Zuma in protest of him being elected as president and yet he did not account for all the evidence that is there against him. May be it was good indeed I dont know, The point here for me is what are the long term effects of SA sweeeping under the carpet Mr Zuma’s corruption case. Are we normalising corruption in SA, is this the right direction. deep down in my heart i have not accepted Zuma as my president.
“our President-elect has a very dark ethical cloud hanging over his head.”
not to mention a shower….
[...] Zuma’s first speech to the parliament on his election as State President, has the blogeratti bubbling along, full of hope that Zuma will walk the walk, as he has talked the talk quite well since the mandate [...]
Nice speech indeed by Zuma. Talk of reconciliation between races and pro-active engagement of the opposition (whilst his colleague in the ANC NEC call Zille “a racist little girl”, whilst his colleagues in parliament boo the DA, whilst his colleague in the NEC, Nzimande, continues with his COPE obsession, etc, all of this with nay a word of admonition from Zuma). He then proceeds to praise his predecessors, Motlante and Mandela, for the sterling work done over a period of 15 years (one was president for 5 years and the other for 180 days). Now, in my mind, at least, this is reflective of an intent to show the proverbial middle finger to one other person, also formerly a president (for nearly 10 years, in fact)! Now this person has been magnanimous enough to have congratulated Zuma for his political success and wished all the best (without any media fanfare), yet Zuma does not reciprocate by acknowledging his role! Clearly he either not intending to reconcile and pro-actively engage with all sectors of society, such as those of us who supported a former president (and still do) and are intent on ensuring that the truth be told about his legacy despite the fashionable clamor for his forthwith relegation to the dustbin of history (the modern equivalent of the old roman damnatio memoriae, or even the old stalinist “air-brush”).
This may be irrelevant to some individuals (including the Pierre de Vos’s, Tony Leon’s, Tokyo Sexwale’s, Mac Maharaj’s, etc, of this world), but some of us see no act of reconciliation. Some of us view Zuma’s “reconciliatory” and “presidential” and non- “self-important and pompous blathering” as indeed a continued act of political war, to be waged bitterly and to the end. Zuma and his colleagues must cease with their obsessions with Mbeki if they indeed are to unite this Republic. Fact of the matter is that when challenges of governance arise, and the Mbete’s and Tokyo’s of this world, jump ship, Zuma will as much become the target of accusations of “dictatorship” and the like; his current allies will soon become reformed disciples of Mbeki or, more likely, Mandela, or some other newly discovered “black jesus”. At that point he will rue the days of complicity with parties who sought to distort the history, legacy, successes and failures of the Mbeki era.
Reconciliation is not simply a matter of black and white nor “ruling” party and “opposition”. It ought to extend to all sectors of society, many bloodied by the ruinous battle for the control of the ANC. His task must be to firstly address this aspect and woo us to his cause. He ought to remind us of the “eye of a needle” and the principle required of a cadre: that one must not will another to fail. He seems to be daily missing the boat, he seems entranced by the adulation of the “masses”, “big business”, “analysts”, the PdV’s our world, etc…all of them self-serving cheerleaders of a shortsighted strategy.
“Mina ngiwulahla phansi ugqingili!” – JZ Zuma
How is that for ’self-important and pompous blathering’?
Vuyo – I am in agreement with you. In fact, I see JZ as a charlatan. Time will prove me right.
Vuyo,
Pierre and his ilk are quite hard to phantom. But as Robert Mugabe said – ‘You have the patience of Jobe’.
The reason Pierre like Zuma speech is because, it was as he put it ’simple’. Reminds me of Verweod’s point of view on education for black people.
Jacob Zuma, ’simple’ speech or no speech at all, cannot wish away the chief architect of our country as we know it. It is impossible. The person, who over the past decade has led provision and protection of the blanket of liberty that protects us all cannot be discarded like used paper plates. It is the very blanket that ensure that:-
1.) every citizen in this country has equal chance at success;
2.) poor people are protected from exploitation by the stronger in society;
3.) women are now seen and accepted as partners in the building of a prosperous RSA;
4.) protects our gay and lesbian community from homophobes;
5.) etc….
What I would like is that uPierre, when he sits down to enjoy his meal at a restaurant or, in his private space, indulges in pleasures that only humans and dolphins partake in for the purpose of pleasuring oneself, to remember and appreciate the ones who ensure that he lives in an environment that allows for such.
After Polokwane we were told that the ANC will from thereon rule and speak with one voice. But that has not materialised. I dont seek to plant divisions within the ANC, but they clearly do not speak with one voice. There is a stubborn determination on part of those in the ANC (especialy the NEC) to undermine & abolish Mbeki’s good legacy but they would obviously not succeed since the is solid and deeply entrenched.
vuyo-Lets hope Mr Zuma will renew & redifine what he term reconciliation in broadest sense. But as for the so-called ‘light, witty and humble’ speech which is percieved to be reconciliatory but not, I honestly do not blame him otherwise he did not write the text himself
The only thing that I want to say is, I just hope that he makes good on all his promises to the people, and that they don’t become empty ones like in the past.
Vuyo,
Where have you been? Thanks for stating my mind so clearly. I thought I was the only one who realised how unskilfully Zuma avoided anything to do with Mbeki in his speech! The man is bitter!
Thanks for the follow up Prof. I did read the judge’s first comments about our NDPP’s plagiarism of his judgment being “sloppy and undisciplined”. I just had no idea the judge was gonna take it a step further. If this does not add to our embarrassment as a nation then I do not know what does.
Thanks for the kind words, Pierre, and picking up on the story. I’m just a journo but I’d be interested to hear your opinion as a law professor on the ramifications of Seagroatt’s latest comments for the DA’s challenging of the Zuma decision in the High Court.
I would imagine that if the SA Constitution allows for the citing of cases from other countries, then a judge’s comments from another country about his judgment used in SA law is very usable in court.
khosi // May 8, 2009 at 12:00 pm
Khosi, the patience of Jobe is startying to wear thin
Sne // May 8, 2009 at 12:33 pm
Hi Sne, I have been very well (just amazed by the falsehoods that have become common fair in South Africa). Hope you are also well.
Please peruse the following links which you may find interesting:
http://www.mg.co.za/article/2009-05-01-smoke-and-mirrors
http://www.mg.co.za/article/2009-05-01-browsed-and-beaten
There clearly has been a conspiracy, somewhere. I personally suspect that the alleged Prince of intrigue in this regard was never Mbeki, as we were led to believe, and was likely the charming Jacob Zuma. Mbeki’s “paranoia” was likely justified, the “mad” accusation against Sexwale and Ramaphosa (in 2000) were probably also not really mad, but grounded on some truth. We are in for some interesting times.
Gill, the legal issue in any review of Mpshe’s decision will probably centre around two questions: (1) When the NPA drops charges is this decision “administrative action” in terms of PAJA (administrative law) and if so, was the decision of Mphse justified in terms of PAJA. (2) Regardless of whether PAJA apply, did Mpshe follow the prosecution policy when he dropped the charges or did he act ultra vires (outside the law) by not following the policy to which he is constitutionally and legally bound.
Neither question will be answered definitively with reference to the Hong Kong case as SA law will apply. But the reasons given by Mphse will be the starting point for either enquiry and could help to show that he did not act legally when he dropped charges, either because he misconstrued the legal rules or failed to follow the legal rules to which he was bound. So although these revelations are highly embarrassing to Mpshe and the NPA I am not sure it will have direct legal application although it might help to show that Mpshe did not act in accordance with the law when he made the decision and could be of some persuasive value in any case brought.
Vuyo, saw the Mail and Guardian pieces. You are of course correct – as the Mail & Guardian points out – that we should remember the good things Mbeki did. We should, however, not forget the disasters either (including HIV/AIDS) and the retention of cabinet Ministers who were not up to the task. I for one would be surprised if anyone had absolutely clean hands in this “fight to the death” between Mbeki and Zuma. Neither side was covered in glory – or so it seems to me.
” … a continued act of political war, to be waged bitterly and to the end.”
Beneath the reconciliatory smiles and honeyed tones, there lurks a very bitter man indeed. That much is quite clear. Zuma is bitter, and he’s out for revenge. To those who don’t believe that: wait and see. The people of South Africa will have to wait a little longer for that better life. For now, Zuma has other things to take care of.
Hmmm. Very interesting. Thanks, Pierre.
Mpho – The DA’s court case … hmmm … that was supposed to be scheduled for June. You know, our courts, bizzi-bizzi-bizzi. My personal feeling is that it will be quietly swept under someone’s carpet.
Pierre De Vos // May 8, 2009 at 2:20 pm
‘…retention of cabinet Ministers who were not up to the task…’
And under Zuma, the instatement of cabinet ministers who is supposed to be in jail.
Still I cant choose between the incompetence under Mbeki or the Criminals under Zuma.
I had the rather interesting experience of being in Washington DC shortly before the USA invaded Iraq. It was pretty clear Bush Jnr wanted to go, and even those opposed to invasion were going “If we go, we’ll back the President.”
The strong argument against invasion had little to do with the cause to invade; it was the absence of an exit strategy. All other elements for a successful campaign were in place, just this rather annoying detail.
The rest is history. After a sharp and very successful campaign, the USA is still stuck in Iraq without any clear exit strategy.
I can’t help wondering if Jacob Zuma isn’t going to find himself in a similar situation.
Prof,
I will be very interested to see whether the PAJA argument holds, but I presume that cannot be the only leg to stand on. Intuitively,the Mpshe decision was more “executive” than “admnistrative”, but then working from a plain man’s sense of fair play, your point that Mpshe acted ultra vires is pretty plain.
However, I feel that there is a constitutional argument here as well, albeit slightly derived. It is the Constitution that discusses the requirements, not only of freedom from “fea or favour”, but also of the need to act in accordance with prodecutorial policy.
As you have so clearly enunciated, it would be very hard to demonstrate that any policy was adhered to. That there wasno reference to the Policy in Mpshe’s statement is a good clue, but I think that he would find it difficult to argue that he had real (but unstated) motivated grounded in the Policy. Although, maybe Kemp J Kemp could come up with something creative….
And the if one reads the reasoning advanced, it is quite easy to argue that there is no rational connection between the “reasons” advanced and the decision made (no actual prejudice suffered, bette left to a judge, using a sledgehammer to adjust a drawing pin on a noticeboard, etc, etc). If there is no rational connectuion between the reasons advanced and the decision taken, then the ACTUAL reason for making the decisio must have been something else. Something undeclared. And if this is the case, then on a preponderance of probabilities, this reason must have had to do with either “fear” or “favour”. Hence the decision is uncostitutional.
Of course, I am ruling out the notion that the decision was not rationally taken, that it was arbitrary (like the result of tossing a coin) – this would likewise be easily shown to be unconstitutional.
One thing which puzzles me. Mpshe is not so much of a fool that he absolutely had to suck his spiel off the Web. There is plenty of legal boilerplate around. It’s almost as if he was announcing that he was not taking his decision seriously. A bit like signing a police statement after being beaten, and then writing “Under duress” in the corner, where the cops don’t notice until the trial comes up and someone points it out.
I am i full agreement with you that Zuma did indeed leave Mbeki out of his speech and that he is indeed bitter about how things were done in the past. So here is to hopefully a better government in the future, for all our sakes. I still strongly feel that he should have gone to court instead of having his case dropped it still doesn’t make anyone believe that he is innocent or guilty and for me its answer that really needs to be addressed.