The news that “terminally ill” Schabir Shaik, who was released from prison on medical parole “to die a dignified death” at home, has applied for a Presidential pardon does not come as a surprise. Shaik is not an ordinary criminal. He is a criminal convicted of bribing the President of the country. He gave more than R1 million to the President and managed to convince the President to do favours for him in return. He also solicited a bribe from an arms deal company executive on behalf of the President. This is the same executive whom the President himself has met on at least two occasions – although the President unfortunately misled Parliament about at least one of these meetings, denying that it took place.
Moreover, Shaik’s brother is the newly appointed head of the South African Secret Service (SASS). He is also the brother of Chippy Shaik, who was fingered in the report of the NPA and the Auditor General into arms deal corruption and who later fled to Australia to avoid prosecution for arms deal corruption (and perhaps to avoid further embarrassment which resulted from the revelation that he had plagiarised his doctoral thesis).
I imagine Shaik would fancy his chances to be granted a full pardon by President Jacob Zuma long before that mysterious “terminal illness” brought an untimely end to his life. Shaik, after all, might have some rather damaging secrets (or at least gossip) that he would be happy to keep for himself in return for a pardon.
Opposition parties are of course rightly outraged by the prospect of Shaik receiving a pardon from the very person whom Shaik had bribed. Democratic Alliance spokesperson James Selfe was predictably hysterical and over the top, saying that if President Jacob Zuma granted Shaik’s application it would constitute a decisive step toward the “complete corruption of the South African soul”.
Patricia de Lille “pointed out” that the law said that an applicant should meet certain criteria to qualify for a pardon - he should have served a significant part of his sentence, for example, or have shown remorse for his crime. “One of the pardon conditions is that you must have served a substantial part of your sentence and on that basis alone Shaik fails hopelessly,” said De Lille.
A pardon would, of course, be shocking and would make a complete mockery of the statements by President Zuma that his government was tough on corruption. If our President pardons Shaik, I for one would laugh hysterically and derisively every time anyone in the government talks about the evils of corruption. Not that our President would be alone in this. Bill Clinton also pardoned some foul crooks who donated money to his political campaign and although he was rightly vilified for this cynical use (or is it abuse?) of his power, the American soul was probably not completely corrupted by his shifty move. Clinton was “merely” exposed as the slimy politician he was.
I am also not sure that Patricia de Lille is correct and I would be surprised if any court found that a pardon for Shaik was unlawful. Section 84(1)(j) of the Constitution states that the President is responsible for “pardoning or reprieving offenders and remitting any fines, penalties or forfeitures”.
The Constitutional Court has confirmed that this section conferred a very broad discretion on the President. It originates from the prerogative powers that have been traditionally vested in the English monarch, but now vests in the Constitution and an exercise in terms of this provision can therefore be reviewed by the courts. Though there is no right to be pardoned, every applicant had the right to have their pardon application considered and decided upon rationally, in good faith, in accordance with the principle of legality, diligently and without delay.
In President of the Republic of South Africa and Another v Hugo the Constitutional Court stated this power was granted to the President “to determine when in his view the public welfare will be better served by granting a remission of sentence or some other form of pardon”. According to the Hugo case there are at least two situations in which this executive act of the power to pardon may be important. Firstly, it may be used to correct mistaken convictions or reduce excessive sentences and secondly, it may be used to confer mercy upon, inter alia, individuals when the President thinks it will be in the public benefit for that to happen.
The Constitutional Court was also very cautious to note that “the power of pardon is not subject to cabinet concurrence or to legislative control, but is conferred upon the President directly by the … Constitution.” The exercise of this power is reviewable but, said the Court in the Hugo case “in cases where the President pardons a single prisoner, it is difficult, (save in an unlikely situation where a cause of conduct gives rise to an inference of unconstitutional conduct), to conceive of a case where a constitutional attack could be mounted against such an exercise of the presidential power.” The pardon will thus be reviewable is limited to very narrow grounds, like whether the President acted in good faith or was bribed.
During the saga surrounding the pardoning of Allan Boesak, the Presidency stated that when the Department of Justice considers an application for pardon to advise the President, the following factors, as contained in internal policy guidelines, are taken into consideration:
- The age of the offender at the time of the commission of the offence;
- Whether a reasonable period has lapsed since the conviction;
- Circumstances surrounding the commission of the offence;
- The nature and seriousness of the offence;
- Personal circumstances of the offender at time of application;
- The interest of the State and the community; and
- The interests of the victim, if any.
I guess if Shaik is granted a pardon, the President will argue that a pardon was granted because of the personal circumstances of Shaik, him being at deaths door and all. This will constitute an outrageous act of political expediency and cynicism for which President Zuma will sadly pay a very small political price in the long run. It will remind the chattering classes and the media elites of the fact that although our President is a charmer, he has had some very dodgy dealings with crooks in the past. Although the print media and the non-state TV channel might criticise Zuma, people have short memories so come the next election it would probably not have any effect on the ANC’s electoral performance.
But for those of us with long memories such a pardon – if granted – would remain as a permanent stain on our President’s name, much like the name of President Clinton was permanently sullied by the pardons he granted in the last hours of his Presidency to some serious crooks who had given money to his political campaigns.
Does the 2004 legislation dealing with corruption by government officials include elected representatives, and does it talk about the granting of favours in return for monetary considerations?
As we shall see with Jackie Selebi whether the general doing of favours (being at Mr Agliotti’s beck and call) afte having received “gifts” constitutes corruption, could the same not be contemplated with this new action if the President grants a pardon?
Some argue that it is legally untenable for Mr Zuma to grant a pardon to Mr Shaik (because it simply could not be considered to be done “in good faith’). The other view is that Mr Shaik has been prejudiced by the holding of office of a President who could not issue a pardon.
The other question is why the application has sat since April 2008 without being considered by the previous two Presidents. How long do these applications normally take before being considered? Mmm, did Mr Mbeki actually consider the application?
On the face of it, it seems that Mr Shaik’s rights may have been infringed…
Actually, this matter does affect all of us, as does the dropping of charges against Mr Zuma. This is simply the fact that we are not now equal before the law. High profile people are being treated differently from the rest of us, simply by birtue of their position, or by the relationship to those in positions of power. Like in Zimbabwe, the pretence of legality is used for as long as it can be, but the outcomes are pre-determined, and by individual or partisan interests.
This is not law, or justice. The Constitution is already broken.
mayimele says:
October 20, 2009 at 9:46 am
http://constitutionallyspeaking.co.za/its-all-a-matter-of-credibility/
It never rains but pours in the animal farm we call south africa under the new admin. We are likely to see everything that was defined wrong, illegal and undemocratic including convicts under mbeki and mandela being re-defined right, legal and democratic under the new regime. We have already seen convicted criminals turned heroes (Yenget et al) and others (like Shabir) released substantially unprocedurally whose cleansing process due to be completed he and others like him may soon be (re-) hired in high positions in government.
——————————————————————————————————
Indeed.
It was astounding that the Minister of Justice avoided the direct question re Shaik’s application for pardon.
It seems that he has not yet heard the Italian expression that “the best lie is the truth”.
@ Pierre.
I reckon that Shaik will not be granted pardon before his sentence has been served or death from his terminal illness, whichever comes first.
If President Zuma does grant this pardon he will certainly lose a lot of credibility among his ardent supporters (yours truly included) – if he has not learned from the demise of the Wise One how quickly and easily the powerful can fall from grace, he had better learn soon if he wants to stay in high office for a meaningful time.
There is no doubt in my mind that Shaik is in fact a “political prisoner” and a “casualty” of the war that being waged within the ANC at the time. The influence of ZiZi in all this wasn’t surprising. I remember clearly when Schabir’s legal problems started a video clip with him speaking on a cellphone, saying something in the lines of “I’m not afraid of Mbeki’s boys and their Gestapo tactics, I’ve come through the Security Police man!”
I think is highly improper for certain issues of legal consequences, in this case the incarceration of Shaik for corruption, to be steadfastly adhered to, when the legal system was abused as a political weapon. In many instances during that period, justice and fairness absolutely didn’t exist.
Harold Ferwood says:
October 20, 2009 at 11:05 am
I am of the opinion that Shaik is less than the proverbial tip of the arms deal corruption iceberg and that he was targeted more for political rather than criminal reasons – that does not make him less guilty.
This entire arms deal fiasco is utterly and completely revolting – I struggle to understand how the ANC has engaged in this despicable act.
Everyone from Mandela downwards should hang their heads in shame.
Harold, you are making an extraordinary claim, namely that evidence was fabricated against Shaik and that the High Court, the SCA and the CC all fell hook line and sinker for this fabricated evidence which led to the conviction of Shaik. If true it would constitute a shocking and super-human feat on the part of the conspirators who would have had to fabricate about 20 000 documents in such a meticulously fashion that it convinced a court, would have had to fabricate the books of Shaiks various companies and the evidence of about 40 witnesses. Extraordinary! Any proof for this claim?
Harold is right.
Shaik was framed – as also Zuma, Boesak, Selebi, Yengeni and Motata J. (Did I miss anyone?)
I demand that Mr Shaik be now, so that he can live out the last few weeks of his life with peace, honour, dignity, and respek!
Thanks a lot.
be now = be pardoned now
Pierre De Vos says:
October 20, 2009 at 11:15 am
I get the impression that Harold is saying something quite different.
Take it from the “de Lille dossier” which listed a whole number of people, many of whom are sitting comfortably even in parliament, possibly cabinet, while political opponents have been targeted.
It does not make them less guilty, but it does make a mockery of the legal system.
Either way the arms deal is rotten and disgusting.
Prof … It obvious that you wish to keep everything here down to legal reasoning but unfortunately it only applies in certain instances. Sometimes the courts is merely a time-out from the real events. I urge you, come down to earth …
Of course the documents weren’t fabricated but the sheer amount is questionable, as is the amount of witnesses (which included about 20 scorpion members!!??!!) over an amount of R500 000??? How much did it cost the state to accommodate Sabeer Sheik-Ibrahim from Indonesia????
http://www.sowetan.co.za/pdfs/transcriptmbeki.pdf
I am glad that I am not the only one who is of this opinion that the legal system was abused …
http://www.mg.co.za/article/2009-10-20-a-third-force-at-work-in-selebi-trial
I would love to say, “I REST MY CASE” but that’s not likely …
and i hear the application was received about 2 days after the April 22 elections……i hate to admit it, but the Shaik I have some funny admiration for the way in which the Shaik brothers do their things…:)
But then again, why should Shaik not get his pardon “in the spirit of reconciliation” if Prof Jansen can deem it appropriate to grant his form of “pardon” to the “Reitz 4″??
Harold,
You may be pointing out some realities in terms of the political machinations of the various factions of our political elite.
However, your suggested outcomes do not logically follow from what you describe. The mere statement of a particular “truth” does not imply a particular outcome as a consequence. Put differently, describing a problem does not confer the right to dictate the solution to that problem.
The central question in relation to Mr Shaik, which has been hammered out time and again, is that he did actually break the law. When the Prosecuting Authority becomes aware of that fact, they (almost always) have a duty to prosecute. Mr Shaik was only “singled out” in the sense of having the spotlight turned on his activities (which, objectively, should have happened anyway) when others did not have that spotlight turned on them. If he committed crimes on the understanding that he would be protected by virtue of the political clout of his friends, and then he had some of that protection removed, then that is his problem. A thief cannot really complain that another thief has taken his stolen goods – he had no right to them in the first place.
The idea that a “political” solution can be found to legal issues is commonly expressed (including by Michael Trapido).. However much this may reflect the “reality” of how things are happening, the moment that we open that door in any sense of collective understanding or agreement, we begin the utter destruction of the fabric of our society.
Although power is often abused, and although the perpetrators will often get away with this (being in the nature of things), we still base our society on “law”, however imperfectly applied. Once we consent to the discarding of law as the first resort (I am not here dispensing with the idea of dispute resolution or restorative justice), we agree to the use of power alone to resolve differences, disputes or conflicting interests.
This leaves us with a position where “might is right”. Harold was effectively appealing to some “higher” sense of justice in saying that Schabir Shaik should be let off because he was ill-treated. But if we dispense with law as the foundation, then there is no higher sense of anything. No law = no justice.
The Shaik, Zuma and Hlophe cases, with their great similarities and inter-relationships are providing a pattern or template for future holders of power to act with impunity. If our Constitution cannot be employed now to forestall this, then that is why i say that it is broken.
Pierre, you are so very correct in saying that a minority of the voting public will become aware of such a pardon and be forever disgusted by the decision. This will be the same minority that are always disgusted by corrupt politicians with a knack for nepotism. Will it have an effect on elections….most probably not. But lets not get ahead of ourselves, no pardon has been granted.
Mike Atkins says:
October 20, 2009 at 10:38 am
“Does the 2004 legislation dealing with corruption by government officials include elected representatives, and does it talk about the granting of favours in return for monetary considerations?”
Section 3 of the Prevention and Combating of Corrupt Activities Act 12 of 2004 reads as follows:
Any person who, directly or indirectly-
(a) accepts or agrees or offers to accept any gratification from any other person, whether for the benefit of himself or herself or for the benefit of another person; or
(b) gives or agrees or offers to give to any other person any gratification, whether for the benefit of that other person or for the benefit of another person,
in order to act, personally or by influencing another person so to act, in a manner-
(i) that amounts to the-
(aa) illegal, dishonest, unauthorised, incomplete, or biased; or
(bb) misuse or selling of information or material acquired in the course of the, exercise, carrying out or performance of any powers, duties or functions arising out of a constitutional, statutory, contractual or any other legal obligation;
(ii) that amounts to-
(aa) the abuse of a position of authority;
(bb) a breach of trust; or
(cc) the violation of a legal duty or a set of rules,
(iii) designed to achieve an unjustified result; or
(iv) that amounts to any other unauthorised or improper inducement to do or not to do anything,
is guilty of the offence of corruption.
As you can see this is fairly wide. However Shaik was not charged under the 2004 Act, he was charged with the 1992 Act.
Back to the Shaik pardon-application: During his trail Shaik admitted funding Zuma with hundreds of thousands of rands, but claimed that these payments were made gratuitously and out of friendship. He also testified that Zuma insisted on repaying the money.
Let’s say Judge Squires was wrong in disbelieving Shaik, then it must still be accepted that Zuma owes Shaik more than R800,000. That is except if Zuma made a miracle financial recovery and repaid the money since the Shaik court case. According to a report in The Star newspaper, Zuma’s office said “The application will be processed like all other applications. The president must consider every application brought before him in terms of his constitutional responsibilities,”
I’m just wondering if the President is in a position to do so.
Isn’t what we’ve been watching these past years, in a sense an actually unfolding transformation of the judiciary and society; including calls for African and so called traditional law to replace ‘colonial’ law, which I understand with respect to the former, said law to be arbitrarily decided by the Chief or King based on his principles, desires and whims, and his alone. A little like Divine Right of Kings, and all the power that goes with that. Is it possible to believe that the ANC’s founding principles are being held to today? Or that the ruling elite are aware or care what they are manifesting? Reminds me of lemmings pouring into the sea.
Is not the most repeated comment: ‘what is transformation?’ Have we come to a collective agreement on what this transformation entails or means? Do even those driving transformation know, or do they consider that a secret, considering that lessor mortals needn’t know?
Does it not appear to some that Zuma is actually an elected King by the few, ruling within the venue of a political environment which is fast becoming a diminishing, pseudo democracy?
Mike Atkins says:
October 20, 2009 at 13:36 pm
You correct in that I sometimes do not or can not logically explain myself and thus much of what I am trying to illustrate is lost or so full of holes that anyone with sound academic skills can unravel and discard as mere gabble.
I enjoyed your analogy in terms of thieves but do not believe in the notion that justice requires law as a foundation. As we come here day in and day out discussing the gross discrepancies that are present in our legal system and how easily it can be manipulated (and in many instances is), but idealistically attempt to separate the issues where we see fit. Why? So as not to admit that the already flawed system is in fact BROKEN!
Harold,
If ithe legal system is “broken”, then what is to be done about it? We still have the legal structure functioning, and at least nominally in charge of things.
Do we just abandon it? But then what – we would land up like Mogadishu.
I believe that the only remedy is to fix it in situ. This will need many persistent voices (of the likes of our beloved “prof”) with the courage and determination to keep on exposing abuses of the system, and to keep advocating the rule of law. And whenever we are faced with a legal / political conundrum, let it be resolved via a legal route. They key to this is dogged determination and a refusal to give up.
Ideas have consequences, and over time it may be possible to spread the idea that this rule of law is a better option that political manipulation. This may start to have an effect on voting patterns. Of course, it might then be necessary for there to be some more of that “dogged determination” stuff in the monitoring of election results, and exposing of electoral fraud (a la Zimbabwe). This is another interest of mine, but we at least have the benfit of modern technology to help.
Harold Ferwood says:
October 20, 2009 at 14:58 pm
I have no issue with pardons in general – as long as it’s fair and applied equally to all those who are entitled to it.
I cannot see how it’s fair to have paroled Shaik for “terminal illness” when others who are really ill who applied long before he did were ignored.
If I recall correctly the IFP had to go to court to get some of its members paroled (not sure what happened with that).
Maggs Naidu says:
October 20, 2009 at 16:20 pm
Don’t not look at this as a collective or that it will apply in other similar circumstances or cases.
The legal system was only a vehicle here, as was the media, for the war to play out. We won’t even dwell where the loss of life occurred, for fear that some here won’t be able to handle it
And again these will be used to put things in order again.
Harold Ferwood says:
October 20, 2009 at 16:31 pm
“The legal system was only a vehicle here, as was the media, for the war to play out”.
Indeed.
However, how does that make Shaik less than guilty or exonerate his shenanigans?
How does it make him more entitled than others to medical parole or pardon?
@ Mike Atkins
“A thief cannot really complain that another thief has taken his stolen goods – he had no right to them in the first place.”
………………………………………………………………..
I do not quite agree with you there. In South African law there is what we call ’spoliation’. This basically means dispossession without authority of the dispossessed. The law does not require a person applying for a spoliation order to prove that he is the lawful owner of the thing that was unlawfully appropriated from him. Therefore, a thief can steal from you and put your things into his house but when you steal or grab it from him then he can apply for a spoliation order and he will certainly get it if all other elements are there. He merely needs to prove ‘undisturbed possession’ of the thing and not lawful ownership. That is unless my Law of Property needs to be revamped… -:)
Maggs Naidu says:
October 20, 2009 at 17:09 pm
I think he declined the medal
So what does transformation of the judiciary mean, what are the actual stated views and specific goals from various factions? Is it just numbers of blacks in relation to whites? Is it to change law as we know it into something else. I for one am confused. Color wise, it seems effectively transformed to me already.
Or is there an old boy’s white club (with token females) holding the reins with blacks feeling they can’t penetrate that or truly participate. Just curious folks.
Since many of you are legals, and since we are dealing with issues around the law, and issues around crime, I would like to ask the following:
For starters, I have been working with an orgnization now for about 6 years concentrating on assisting victims of rape. We initially establilshed the local trauma centre for victims of that ugly offense and other abuse against women and children, with available counselors to attend to victims, said attendendants not with the police, to accompany them to embarassing examinations at hospital, to help fill our police reports, attempt follow-up so the case is not dropped, be willing to accompany at court., etc
The question I ask you: how do we deal with the following, with respect to the law.
We have an individual in our community who is a serial rapist, the younger the better. Since the late 70’s he has been convicted and served time repeatedly, then released, then he rapes again. Recently, he has been released. I saw him today and he glared at me. You probably know the glare of guilt layered guilt.
We know he will rape again. Incarceration is short for rapists who don’t murder. I watched him once at a funeral (prior to his last conviction) eyeing a young female; it was like watching a preditor in the animal kingdom. Totally focused.
Question is: how do we prevent his next attack on a young innocent? Why isn’t, or is there, a dangerous offender law?… this man should never be walking about in society. What say you? Without law, he will eventually be necklaced, but likely only after he’s raped once too often. The damage multiplied is still in place.
Andries du Toit, Quote of the week above top-right: “We’re in trouble!”
It appears that the struggle continues, only the struggle now is for firming up democracy and true non racial freedom. What are we willing to give of ourselves?
On RSG today Prof, you spoke so well. It was nice to hear you and ironically I had never seen you before on TV (don’t watch TV) or heard you on radio; my domestic was listening, and not working by the way, and I asked her: “Is dit Pierre de Vos?” She was quite amazed that I knew instantly who was speaking”. Good voice by the way. Wisdom unquestioned.
Both my domestic, no matric education there, and my partner who also listened to the show at her Library were very interested. Just a thought to pass on mate…. you are getting to many of the people. Good on ya.
If the spirit of reconciliation should resonate throughout South Africa for the sake of our democracy, economy and investors, then Shabir Shaik should be forgiven for what he did just as the Free State University students have been forgiven.
Whether presidential pardoning of Shaik is right or wrong is not an issue here, but if reconciliation is the basis of our human behaviour particularly here in South Africa, we should all in our hearts find space to forgive Shabir Shaik and his friends or associates who were found guilty by association in the courts of public opinion. Otherwise we will come across as people of double standards.
Thereafter hypocrisy and double standards will be the order of the day and become the precepts of doing business in the country, after which the downward spiral of our economy will set in, as property rights and contractual agreements are repudiated with impunity.
I do not think this is what the patriotic Professor wishes for his country in which he was born and bred. Let us all unite not only behind our political parties but also behind the government of the day and its decisions for the sake of our nascent democracy, so that investors can make more money at the JSE and pay more taxes for the benefits of the poor and thereby curtailing the prospects of the revolution.
How is that? Does it make sense my dear South Africans?
King Zwakala is right
Mr Shaik and the Free State students must both be forgiven. Certainly, being CONVICTED of millions of rands in corruption is more or less equivalent to being ACCUSED of pretending to urinate on food and feeding it to your humiliated cleaning staff. That much is clear.
But there is a more important point. Why forgive only Mr Shaik and the Free State racists? What about the hundreds of thousands of prisoners languishing in jail for less well-known offences, everything from rape to fraud to shoplifting to murder? In a spirit of UBU-NTU they must be forgiven and released immediately!
Yes!
Mikhaik Dworkin Fassbinder says:
October 21, 2009 at 8:40 am
Snap!
Sne, you are not wrong as regards what an applicant must establish in order to make out a case for a spoilation order. That is, you are correct in that the question of ownership is irrelevant. If my fairly hazy recollection will serve, the two requisites that you mention in your post are the right ones. The first is that the applicant must have been in peaceful possesion. The second is that the applicant must have been deprived of possession and such deprivation must have been by way of force or otherwise contrary to the applicant’s consent.
King Zwakala says:
October 21, 2009 at 8:18 am
“pay more taxes for the benefits of the poor”
It seems from the reports from government, political parties, media and commentators alike that much of our state resources have been stolen, squandered or wasted rather than as “benefits of the poor”.
How is pardoning Shaik going to improve that?
Why does Shaick need to be pardoned in the first place? Is the reason for his parole not that he would die (or should have been dead) within a few months anyway? He won’t need a pardon there where he is going. Unless of course his personal scientists are working on a miracle cure for his (yet to be identified) incurable disease.
Maggs Naidu says: October 20, 2009 at 11:13 am
“Everyone from Mandela downwards should hang their heads in shame”.
You are quite correct Maggs. But it is surprising and disgusting that those who claim to be concerned about the arms deal saga and its consequences choose not to know or ignore the fact that this thing happened during Mandela era irrespective of who was actually the foot soldier, and that his and his wife’s foundations are said to have received substantial amounts of money from the arms deal. But this people (JZ and his team) in their sought for a lasting solution exclude Mandela and Graca simple because in their view, since he did not take a stern action against JZ then he loves and support him and everything he does. So he is their saint while he himself said many a times that he is not a saint. It is also against this background that their so-called re-opening of the investigation on the arms deal died a natural death because there is no way you van implicate re-open this case (targeting Mbeki) and never end up shooting at the saint, Mandela. One can also assume that the fact that he did not and does say anything while (old age aside) SA and the constitutional state he spent his life fighting for is disintegrating in favour of one crooked individual, is because he fears they might hang his dirty linen in public and make him SA’s DEVIL along side Mbeki. This cannot help us to resolve not only the arms deal saga, but any challenge that is confronting us as a nation. This selective practice must be condemned in whatever guise it occurs and irrespective of who does it.
Harold Ferwood says: October 20, 2009 at 11:05 am
“In many instances during that period, justice and fairness absolutely didn’t exist”
Harold, I agree with PdV in his challenge of your views in this post. Particularly how you interpret the courts’ findings against Shaik and JZ, just to mention a few, which are based on a legally tenable, substantially and procedurally fair prosecutorial processes. Can you really compare the findings of the courts in the cases of the two with that of the JSC against Hlophe and the eleven justices of the CC? Can you really trace in these cases Mbekis’ visible invisible hand as you can the Luthuli House/JZ govt’s in the NPA’s dropping of the JZ case, Shaik’s parole and JSC-Hlophe’s case? While I agree that Mbeki and admin may have somehow politically victimized its opponents, I cannot agree with your unsubstantiated conclusion that in many instances “justice and fairness absolutely didn’t exist”. If that was the case I would like to get your opinion and assessment of the state of the justice system under the current administration, young in office as it may be.
mayimele says:
October 21, 2009 at 10:09 am
Recently a small panic happen when a source who is very reliable (informed me about MJ’s alleged death basically an hour after it happened) informed me that he heard that Madiba had died … I frantically went about trying to verify this but obviously nothing of the sort had occurred. But in that time I reflected on what Nelson Mandela meant to be personally . I had been saying relatively awful things about him when it has become more clearer how he allowed serious events to happen under his “leadership” and his “naivety” particularly in politics, to a point that I even wish he account for these “atrocities”.
But I came to the realization that despite all this I undoubtedly knew that his heart was always in the right place. How could I condemn a him for failing but having no malicious intent. I recalled even when he spoke totally against his own personal ideology, it was because he believed it was for the greater good.
As time has passed I am sure he had an opportunity to do some serious self-reflection and was saddened that his inertia resulted in the ZIZI SCOURGE. I am of the opinion that he did not blindly support JZ but understood that he was only and lesser evil to overcome the dark shadow that has covered our country for almost 15 years.
I have been posed this question as to why do I think Shaik deserves a Presidential pardon more than others ….
I am not sure but maybe the answer lies in this question:
Should evidence surface that Mandela was involved in offences such as corruption and defeating the end of justice (hypothetical of course) that he face the charges … ?
@Harold
With regards to your last question, my view is if concrete evidence surfaces to that effect that Mandela was involved in corrupt practices in terms of our laws then he should be prosecuted; irrespective of what he did for this country. And I know that he would neither object to go to court nor organize people to threaten courts and judges. He has already gone through this, not only in the apartheid era but also in the new political dispensation and under his own government. I think our laws provides for old people like him to be sentenced differently but in a manner that does not promote a situation where he would be seen to be above the law. This is a democratic test that JZ failed as leader of the ANC and still failing as the president of the Republic.
“Democratic Alliance spokesperson James Selfe was predictably hysterical and over the top, saying that if President Jacob Zuma granted Shaik’s application it would constitute a decisive step toward the “complete corruption of the South African soul”.
James Selfe is right… it would be the ultimate symbol of the decay of our institutional bulwark and respect for the constitution.
I see that you are trying to get your statutory swipe at the DA into every blogpost again, either to try and pretend that you’re balancde
Shaun, I agree with you.
Pierre is more or less on the same page as the DA (and the ID and UDM, for that matter), on just about every issue he currently addresses. That fact presents him with a reputational crisis. As a matter of “balance,” and to maintain his street cred, he needs to swipe at the DA at every opportunity. Some of these swipes are legitimate. Others *”Botox” Zille, Selfes’s “hysteria” etc.), are just silly.
Pierre must learn the fools who label him a racist every time he opens his mouth will not be appeased by haklf-hearted criticism of the official opposition. Nor will it build his street cred very much to pretend to believe that the stupid prank of the Reitz morons are the equivalent of the Sharpeville, the bombing of Hiroshima, or the extermination of Tasmanian aborginals.
I did say in “many”, thus implying not all cases were the accused prejudiced by external interferences and concerted attempts to garnish and sometime neglect evidence to infringement on the accused’s “right to a fair trial” rights.
But to attempt to clarify the real scenarios you mentioned (namely “Luthuli House/JZ govt’s in the NPA’s dropping of the JZ case, Shaik’s parole and JSC-Hlophe’s case”) I would be a fool to say yes as much as anyone of us can ever be sure of what transpired in the chambers of the CC with the JP. But I can promise you that Mandela will not face any charges while he is alive even if solid evidence should suddenly appear which would amount to a prima facia case against him!
Mike earlier informed me that Michael Trapido has already advocated the notion of “Political solutions” for “legal issues” and I wish to apologise for any plagiarising of his original ideas. However it seems its been already in practice for as long as we have been a democracy. The TRC is a case in point.
And this trend will continue to wield out the natural justice which is certainly required for the unnecessary damage caused by some. Justice has always superceded the Law.
I know at this juncture I am coming across as vague, but like most things, time and events will greatly substantiate my views and ring them true.
@ Mayimele and Harold,
The annoyance I hold is not so much around the corruption but over the madness of spending what now seems upward of R100 billion on arms when there is so much more that is important and necessary.
That we have no enemies who pose a military threat is less relevant than that we have far more urgent and pressing needs than toys for boys.
Maggs Naidu says: October 21, 2009 at 13:07 pm
“The annoyance I hold is not so much around the corruption but over the madness of spending what now seems upward of R100 billion on arms when there is so much that is important and necessary”
In 1993, the former president of Zambia, Kenneth Chiluba wrote in one of his papers as the leader of the labour movement outside government that “politicians can promise to build you a bridge where there is no river”. This statement can be synonymous with that of the former premier of Mpumalanga the province that came to be known as “Mamparalanga” during his reign that `politicians were allowed to lie’. These statements were correct from time immemorial, including when the two became leaders of their people, and they are much more correct and relevant now under the democratic system.
It is indeed disgusting when our political leaders `lie` by building in our name and at our expense bridges where there are no rivers.
I remember Terror Lekota sometimes ago trying to justify why SA must purchase so expensive military equipments while there is no possible external threats to the country and its citizens now. While I agree slightly we must as a country always be prepared for any eventuality, it hurts to see our government, in the face of millions of people who live in falling, insecure and dilapidated shacks and other under the bridges and in open spaces along side the roads and in the bushes,
- prioritizing the buying arms which have no immediate use, expensive vehicles which are not part of the voters’ needs and not in their manifestos
- spending money in installing hotlines to listen to the already known problems discovered prior to 1994
- prioritizing thanks’ giving parties (by the anc to its poor hungry voters) instead of their houses
-putting a lot of effort and money in useless and endless investigations of the obvious problem situations and people instead of getting down to correcting the situations
-slipping in expensive hotels while talking the language of the poor knowing very well that they do not mean what they say
- wasting money and time in visiting mayors without warning instead of delivering the services needed and promised during the elections
- holding of endless and fruitless meetings with teachers, ministers and local government officials every time there is protest and making useless statements every time there is service delivery protests instead of delivering the services required and promised
- obvious protection and cover up for corrupt comrades and connected leaders while acting swiftly to shoot, arrest, prosecute and sentence those poor and politically un-connected people who voted for them in power
- wasting a lot of tax payers’ money time in planning workshops and overseas trips learning what they will never implement in their life time
This is indeed disgusting but unfortunately that is the name of the game called politics. And as PdV said “people have short memories so come the next election it would probably not have any effect on the ANC’s electoral performance”.
Harold,
Although I am a bit of a hradliner when it comes to the Rule of Law, I do acknowledge that there are times when anon-judicial approach can be taken. The use of Restorative Justice with young offenders committing non-violent crimes can serve both justice and the interests of the community better than a purely punitive system.
Likewise, the TRC, with its limitations and imperfections, performed an important function. Many white people who would baulk at the idea of “forgiving” Shaik (as with Boesak) are fairly OK with the idea of letting bygones be bygones in relation to apartheid issues. And we do at some point have to leave the past behind.
But the TRC was done in a “legal” manner, with set procedures, criteria and limitations. There was sense of dispensing with the Rule of Law. And neither did the “forgiveness” come for free. Disclosure and (presumably) remorse were required. These things would not have been elicited without the benefits of avoiding prosecution. The other characteristic of the TRC was that it dealt with past issues that were not likely to be repeatable or normative.
Shaik does not come anywhere near all of these attributes of the TRC. Actually, there is no comparison. those who want to ‘forgive” so loosely are either muddle-headed, or have motives not to be admired.
mayimele says:
October 21, 2009 at 15:30 pm
I agree strongly with a lot that you have said, generally with most.
I disagree that our president visiting municipalities and meeting stakeholders is unnecessary – if he is to lay down the line there’s no other way that it can be done.
I would nonetheless like to see some action flowing – it’s been a long while since that visit and Sexwale’s pajama party, then silence.
And more silence.
Money has been flowing out of state coffers like the dam (and damn) wall has broken but we are yet to see any action that says enough is enough.
I am not sure though that the ANC is going to escape unscathed.
From the few discussions I have had it seems that the support in 2011 is going to take its toll.
Mike Atkins says:
October 21, 2009 at 16:05 pm
I am in many minds over the TRC.
For many people it was a really opportunity for some emotional relief.
It created the space for many to escape the consequences of their actions.
It generally allowed for business as usual.
Beyond that I am not sure how it built bridges or created any pathway for nation building.
@ Mike Atkins
The repercussions of the TRC is going to haunt us and probably is already. The outrageous “flexibility” that it administered its form of “justice” is in my view the reason for the moral ambiguity that exists in our society particularly in our ruling party. The fact that they didn’t answer for any of the atrocities they committed and yet it was expected from whites to collectively apologise for apartheid (which has not still not materalised) created a vacuum of accountability.
If you are a legal practitioner then I am certain in no way can you conclude that the TRC was remotely a genuine legal process.
Maggs, nice analysis of the TRC.
“For many people it was a really opportunity for some emotional relief.”
Yeah, Tutu had a “wail” of a time!
Harold Ferwood says:
October 21, 2009 at 16:58 pm
LOL!
http://www.timeslive.co.za/news/world/article160959.ece
There’s terminally ill for sure.
Harold,
I am not a legal practitioner, and I stand under correction regarding the TRC. I was thinking more about the fact that it was created in terms of legislation of general application, and followed formalised criteria.
mayimele says:
October 21, 2009 at 15:30 pm
This statement can be synonymous with that of the former premier of Mpumalanga the province that came to be known as “Mamparalanga” during his reign that `politicians were allowed to lie’.
———————————————————————————————————-
It seems that “Lies” Mahlangu was articulating an unspoken national standard.
http://www.timeslive.co.za/opinion/editorials/article161236.ece
It seems that the line between bad governance and rotten criminality is becoming very blurred.
@Maggs 21, 2009 at 13:07 pm
You are raising an unpopular yet important point of the economies of scale Maggs. Indeed if you look at the millions of tax payers money that is spent on pursuing justice where it is broken by a mere theft of R3000 through prosecution, investigations and commissions of enquiry, it is too much and somehow wasteful in a country where millions of poor people are houseless and often go to bed with empty stomach. It is just unfortunate that in pursuance of justice where documented law is broken, the cost of prosecution, it seems, is not looked at versus the cost in monitory value of the act through which the law was broken but rather versus the cost (as in consequences) of ignoring such an act through which the law was broken.
Mayimele,
While ANY government expenditure needs to be looked at in terms of wastefulness, think about the logical implications of what you are saying.
Let’s just say that all of these little acts of corruption were not followed up. And think about the fact that every official in every municpality and government department knew this. How much more corruption would there be? What would the cos be then?
mayimele says:
October 22, 2009 at 17:03 pm
“You are raising an unpopular yet important point of the economies of scale Maggs”.
My concern is not so much the cost of dealing with the corruption and criminality but that we are being lied to as a matter of course – worse still the adverse impact on the developmental state and the NDR is profound.
Add to that the revelations (in the Zuma and Selebi matters) that phones are being bugged for reasons other than national security and that these agencies are using/releasing information in ways that it hardly could have been intended by the powers that they have.
I hasten to add that I am happy for both Zuma and Selebi that the information has come to light and casts a vastly different picture on their matters than the NPA would have had us believe.
However where, when, how does this stop?
Are we heading back to the days of the Security Branch and BOSS!
I cannot for a moment accept that this is what was intended by our constitution.
this is very interesting considering that walter basson, eugene terreblach, magnus malan, the world’s worse mas murderers are out some never went to jail and no body complains about them. what is it that shaik has done worse than the the guys mentioned above, obviously with white justice they are free and according to some experts no cloud hanging over anyone of them. interesting though that even patricia a grduate from kill the… kill the… she see no cloud on walter , malan and many more.
@Mike Atkins, I agree with you on the consequences of leaving any acts of misconduct or criminality unpunished simply because they are small or minor or that the cost of prosecuting anyone who commited them will be huge. I just did not put my position on the choice between persuing justice at all costs and avoiding the wastefullness that is there in doing so in the interests of justice. But had I thought of taking a position between the two sides I would have sang the same song as I hereby do agree with you that we should punish anyone for any act of misconduct or criminality irrespective of the size or proportion of the act versus the prosecurion costs.
mayimele says:
October 27, 2009 at 9:33 am
I agree with you on the consequences of leaving any acts of misconduct or criminality unpunished simply because they are small or minor or that the cost of prosecuting anyone who commited them will be huge.
—————————————————————————————————–
“A FORMER top official in the Mpumalanga public works department, who incurred an unnecessary expenditure of R200 000 in a land deal, has gone scot-free.
“State lawyers had advised that pursuing the case against the official would ‘not be cost-effective’”.
http://www.sowetan.co.za/News/Article.aspx?id=1081920
But then we have this http://www.sowetan.co.za/News/Article.aspx?id=1082229
@Maggs Naidu, now I get your point and agree with you on your concern. My major one however, in the whole equation is the behaviour and the conduct of the NIA, Frazer et al in particular when they break the law with impunity by using their state’ offices and machinery to conduct illegal interception of even the (former) president’s telephone conversation for the benefit of individuals and the fact that the government through the police and NPA deliberately ignore their criminal acts by allowing them to continue with their jobs without any punishment. The reason behind this is obviously clear – the current president himself is benefiting handsomely from these acts; but it has long term detrimental consequences to our justice system and fight against corruption now and in future.
mayimele says:
October 27, 2009 at 11:49 am
Yep.
Unless all of us elevate the conversation in that regard it will only get worse.
I really don’t have an issue with my communications being intercepted if it is in the general pursuit of the well being of South Africa.
I have an issue with the way the intercepted communications have been used and that no one is held to account.