It is striking that National Director of Public Prosecutions (NDPP), advocate Mokothedi “Kokkie” Mpshe, (or whomever actually told him to make this decision and wrote the statement he delivered yesterday) never once mentioned section 179(5) of the Constitution when he tried to justify the dropping of charges against Jacob Zuma.
Section 179(5)(a) states – as I have previously mentioned – that the NDPP must determine a prosecutions policy with the concurrence of the minister of justice “which MUST be observed in the prosecution process”.
As I have pointed out, Mpshe quoted extensively from House of Lords precedent to conclude that where conduct of the NPA would be gravely wrong or show a gross neglect of the elementary principles of fairness it would be unconscionable to proceed with the trial. Problem is, the UK does not have a written Constitution and no section 179(5), so this precedent is rubbish – unless I have not checked and we have been re-colonised by Britain.
It is clear that where a person is charged but the purpose of charging a person was never to secure a conviction the case could not proceed. But what should happen in a case like this when the person was clearly charges with the purpose of securing a conviction but the timing might have been used also to secure a political purpose, namely to defeat Zuma at Polokwane?
I would contend this scenario would not allow the NPA legally to drop the charges. There are three reasons for this.
First, the prosecution policy, which binds the NPA when making such decisions, does not allow it. One could argue that the prosecution policy states that one of the factors to be taken into account when deciding not to charge someone even though the NPA believes there is a winnable case against him, is “[t]he need for individual and general deterrence, and the necessity of maintaining public confidence in the criminal justice system” and that the only way to restore confidence in the NPA after the abuse of power would be to drop charges.
This would be an absurd argument. The NPA is in big trouble now because of the perception that has taken hold that it did not treat all suspects the same, first giving special treatment to MR Zuma by not charging him when they should have, and then conspiring to time the charges to influence his chances of success at Polokwane. Dropping the charges furthers this perception instead of addressing it.
The only way the NPA could have acted to “maintain public confidence” in the criminal justice system would have been to demonstrate that despite these revelations it was going to prosecute Zuma without fear favour or prejudice and that they will not buckle under political pressure and will not drop charges against Mr Zuma merely because he is powerful and rich.
This is probably why the NPA never mentioned this aspect of the prosecution policy in its statement and that is also why the decision is probably ultra vires and can therefore be set aside.
Second, the policy guidelines makes clear that “public interest may demand that certain crimes should be prosecuted” regardless of any other factors. The Zuma case is clearly such a case. Mr Zuma is the most powerful politician in South Africa. He has now gotten off despite having a serious case to answer and probably being a crook.
This will send a signal to every petty state official – from a traffic cop to a nurse – that if one belongs to the ANC and has friends in high places one will never be charged with corruption no matter how strong the evidence. The outcome will be a gradual but steady slide into a corrupt state and the poor – who rely on the state for service delivery – will suffer. If there is one case where the public interest demands that charges proceed, this is it.
Third, the NPA statement fails to mention the legal document which was supposed to guide its decision in this matter, preferring to rely on irrelevant precedent from a foreign country. If one provides reason for a decision and that decision had to be exercised in terms of guidelines and the decision maker neglects to mention those guidelines, it would be difficult for a court not to conclude that the binding guidelines have not been adhered to.
I cannot understand why the NPA did not mention the prosecution guidelines and section 179(5(d). Surely lawyers vetted this statement knowing full well that the decision would be scrutinised? Either the NPA is even more incompetent and clueless than we have been brought to believe or it knew that the guidelines would not be of any help and thus failed to mention them.
(Whether any judge would be convinced of this argument remains to be seen, but that a more than plausible case exist is beyond doubt.)
Meanwhile I see Mr Zuma complains about people saying he has a cloud hanging over his head (is it perhaps time for Zapiro to enhance his cartoons with a cloud on top of the shower head?) arguing this is a figment of journalists’s imagination. Well, no, just read the statement of Advocate Mpshe where he says the NPA still thinks it has a winnable case against Mr Zuma. If that is not a cloud I really do not know what is.
Fact is, for as long as Mr Zuma lives we will wonder whether he would have been convicted of fraud and corruption – and rightly so. Nothing the ANC or Mr Zuma says can change this incontrovertable fact. They can shout and scream and complain, but a whole pack of lawyers, after considering the evidence believes they could succesfully prosecute Mr Zuma.
I have only one question to the Prof: After eight fruitless years of attempts to persuade Mr Zuma to allow a court to show Mr Zuma’s innocence (or guilt, as it may), is this the really, final, last-ditch attempt that is possible to law-abiding South African citizens?
It so interestying how this whole JZ issue come to an end. There has been an abuse of the legal process by some individualls to adress their own personal agenda,s at the expense of JZ. Why people are still questioning the decision of the NPA? JZ is also protected by law like any other citizen. We must respect this decision and stop eliciting our hatred of JZ.
Yes the decision does not touch on the merits of the case, but practcising lawyers should be able to appreciate that some cases become blunders due to technicalities. Why should it be an issue with JZ,S case? Is it because people have nothing to campaign against him now? Come on now people, it has emerged that some people had political interest in this case and others abused the legal process. Why is it so hard to move on with our lives.
Well lets just hand it to the ANC they really did a fantastic job on a systematic attack on the NPA, talk about an institute that has been completely damaged.
The firing of Pikoli had rendered the NPA which is “acting” completely incompetent.
Why hasnt President Kgalema Motlanthe appointed a new NDPP by now? oh i forgot a conflict of interest in the Zuma case.
by also hey why would Mpshe wanna charge his new boss? im sure he doesnt want to be an actor anymore and actually be the head of the NPA
This whole conspiracy theory is flawed Ngcuka had the opportunity to prosecute Mr Zuma. I did not.
Please explain this to me?
What p***ed me off was with regards to tapings a prob into whether the tapes are aurthentic or legaly obtained and how a private citizen can get NIA material is only being “PROBED” now??
so we still dont know if the tapes are legal
Mpshe lied about the fact that the tapes were legally obtained based on the fact the NIA said so and that they were legit, how unprofessional can you be? He simply took it on face value. Incompetent absolutly.
Now NGCUKA and McCarthy is being charged and also by the media without even given the opportunity to even listen to them?
McCarthy is right the finial decision lay with Mpshe to prosecute Zuma before Polokwane or after Polokwane
MY fav quote of the day…
“I stand by my decision (to prosecute Zuma) until and unless the NDPP (Mpshe) decides otherwise,” Mngwengwe stated. “My decision is out there in the open. If there was anything wrong with my decision, based on the facts, people would say that.”
Mpshe how much did they buy you for? weakling
mel // Apr 8, 2009 at 12:35 pm
because Mel the very evidence that implicate people who conspired against JZ has not be proven to be legit as a probe into the authenticity of the tapes and how a private citizen managed to get his hands on them still need to be resolved.
McCarthy and Ngcuka have rights to and they have been accused and charged for something they may or may not have done or something that has been placed out of context. All are equal before the law.
you can not just simply move on and let this drop it wont let you because of law
PDV:
“Unless I have not checked and we have been re-colonised by Britain.”
Prof, didn’t you hear, the House of Commons repealed the South Africa Act and the Statue of Westminster… Thus all legislation enacted since 1910 is null and void, including act 108 of 1996.
George very nicely spotted
This is what should of happend, which is none biased and its a compromise, Zuma charges should of remained and at the same time charge McCarthy and Ngcuka.
This would of shown without a doubt the NPA acts without fear, favor or prejudice…This alone would of vindicated the NPA and proved once and for all, all are equal before the law and would of uphold the constitution.
That is what should have been done. This is not about Zuma anymore this is about all of us and whi is above the law and who isnt.
The NPA cracked falled its most basic founding principle to act without Fear Favor and Prejudice.
The criminal justice system failed south africa, so i dont know why the likes of some people on here are so happy and shouting now look who has eggs on your face, we all have eggs on our faces.
What Gubbay CJ in the Smyth v Ushewokunze judgment cited by the NPA in the Statement:
“The first respondent [The Prosecutor] acted in a wholly unreasonable manner towards the applicant and Drury. He allowed himself to lose objectivity and impartiality in his handling of the case against the applicant. …His conduct lacked that measure of justness and candour so essential to the role of a prosecutor. Compare Chibi v Minister of Internal Affairs 1970 (1) RLR 88 (G) at 91C-G, 1970 (2) SA 606 (R) at 608F-H; Land & Agricultural Bank of Southern D Rhodesia v Jameson 1970 (1) RLR 146 (G) at 151H-I, 1970 (3) SA 281 (R) at 286B-C.
Thus, the order affording relief must be against the person of the first respondent [The Prosecutor}. It is he who is to be prevented from any further involvement in the prosecution of the applicant. ”
The tainted Prosecutor was barred from handling the matter but the prosecution proceeded. Nothing more!
[...] my post two days ago on why the Zuma decision is wrong, Pierre de Vos has written two posts on the matter on his excellent Constitutionally Speaking blog. They are really worth a read [...]
Zuma is not allegedly corrupt or an alleged fraudster.
Zuma is corrupt and he is a fraudster.
If he sues me for libel, he’d have to prove that he isn’t, right? So there.
I am extremely worried that the learned Professor has stooped so low. He has now become one of those who will never be satisfied unless Mr. Zuma has been hanged. When he wins a court case, he dismisses the findings of the judge. When the case is dropped by a judge he wants him to be recharged. Now that the NPA have dropped charges he feels that there is something sinister. I have a few questions for the Professor:
1. If there was a conspiracy, how can the Professor be sure that there was no evidence that had been falsified?
2. Why where there so many leaks of the so called evidence to the media?
3. Why did the Professor not see the leaking of so called evidence to the media as illegal and unlawful?
4. How was it possible that there was an encrypted fax that was so easily decrypted?
5. Why did the government of the day not explain about the authorship of the letter written to Mr. Gavin Woods, then chairperson of the Parliamentary Standing Committee on Public Accounts, written about the arms deal investigation?
6. Why was this letter used in the judgement of a Mr. Shaik when it was not written by a Mr. Zuma?
7. Since you think that the NPA has such a strong case why did they not just charge him in 2005 and go to trial instead of delaying the matter until it was struck from the court list?
8. When Judge Chris Nicholson threw out the charges on a legal technicality why did the NPA just charge Mr. Zuma instead of appealing?
9. Why did Bulelani Ngcuka call an off the record briefing to say he had a prima facie case of corruption case but it was unwinnable?
10. Was there really a need for a conspiracy if there was so much evidence to convict? (This one doesn’t make sense, either these conspirators are really stupid or they are plain mad)
And that half-baked ‘let’s blame the guys who are long gone’ excuse could not have taken 3 weeks to write. You can’t wrap fish and chips in that newspaper.
Clearly, if there are more parties involved, then they all need to face trial. Just because other people are guilty does not make Jacob Zuma less guilty.
Thomas:
The Harms ruling found that a political conspiracy does not magically make the prima facie evidence for which Shaik served a cosy prison sentence for disappear.
The encrypted fax was never alleged to have been authored by Zuma, but by Shaik’s secretary.
The tapes that Zuma’s lawyers found suggest that Zuma and co are guilty of illegal spying, meaning the new evidence of a conspiracy only implicates Jacob Zuma further.
The evidence was not ‘leaked’ to the media. It’s the purpose of the NPA to be transparent and held accountable by the public. They HAVE to publish their findings, their decisions to prosecute, etc. It’s designed to ensure that the NDPP can act free from favour or prejudice.
Think about this: Nguka decides not to prosecute Zuma, even though there is a strong case. Exit Nguka, enter Pikoli. Pikoli realises Zuma is dirty and he has to prosecute Zuma because it is his job. Suddenly, Pikoli gets dismissed. Coincidence? Now, a new NDPP namely Mpshe arrives on the scene and takes 3 weeks of butt and nose picking to think up an excuse that follows Polokwane’s decision to make Zuma president by nook or by crook.
All this makes the cloud over Zuma’s head even darker and more ominous. The political conspiracy is there, but it’s designed to ensure that Zuma becomes president and not for his demise.
The reasons given to drop the charges against the ANC president Jacob Zuma are not satisfactory. If there are other parties involved, they need to be prosecuted alongside Zuma as well. The fact that this decision was taken two weeks before the election, raises a lot of questions than answers. The principle of equality before the law is at stake. Jacob Zuma must understand that he is not acquitted of the criminal charges. A review of the National Prosecuting Authority’s (NPA) decision to drop charges against Zuma is needed.
Garg Unzola // Apr 8, 2009 at 2:09 pm
“All this makes the cloud over Zuma’s head even darker and more ominous. The political conspiracy is there, but it’s designed to ensure that Zuma becomes president and not for his demise.”
Im afriad this is the true situation to back this claim up im sure some of us are still following the Hlophe matter whats interesting is this:
http://www.news24.com/News24/South_Africa/News/0,,2-7-1442_2498629,00.html
NIA once again leaking documents this time to a judge about the arms deal and who is implicated in the arms deal.
There is something really rotten here and you know what it wouldnt surprise me if Hlophe was the judge who authorised the tapings ( just a theory) for zuma
Agree, they have not followed their own policy and have relied on the weakest of weak arguments to justify their treasonous conduct, treasonous to the average citizen, that is. The root of the problem – the ANC’s innability to govern in a consitutional democracy which it has run like the corrupt liberation organization that it always was, and the cadre/Cde deployment policy it has followed for the last decade or more.
By the way, nobody has been charged on the basis of those tapes. No police officer would dare charge anybody an the basis of unsubstantiated tapes of uncertain authenticity, most of which are at best ambiguous and at worst do not prove what their exploiters claim they prove.
Hollers from Zuma supporters for people to be charged are simply intimidation and smokescreening.
It has always been a contention of JZ that political medlling and abuse of power manifested in his case. The tapes confirmed this allegations. NIA confrimed that they(tapes) existed. why people keep questioning their authencity?
The abuse of the legal process by Mccathy warrant dropping of the charges. Why beacause it has always been his(JZ) claim that people abused their power at his expense.
Mel:
Nobody would’ve been able to bring charges against Zuma if there wasn’t a strong enough case. Unless you mean to admit that the ANC is incompetent when choosing legal experts to serve as public officials? Vusi Pikoli was after all appointed by the ANC. As were McCarthy and Nguka. All these allegations of political conspiracies keep pointing back at one common denominator: Jacob Zuma himself.
Prof – as a very regular reader here and as one who has never posted (for fear of being out of his depth!), please guide laymen like me:
1. I read somewhere that the correct route to launch a private application contesting the NPA’s decision would be to lodge such in Pmb High Court. The DA has lodged papers and secured a court date in Gauteng. Does this matter that its under another Provincial High Court?
2. Assuming that Gauteng High Court accedes to hearing the case, how is it likely to proceed? Who must lodge what and by when, etc?
3. Assuming that High Court hears argument and pronounces on it, and assuming it finds that the NPA erred in withdrawing charges, what happens then?
Thank you for your commitment to expanding constitutional jurisprudence to ordinary folk like me. I have had my eyes opened about such matters by not only yourself, but the host of bloggers here, and thoroughly enjoyed some of the debate – even though one can see through sometimes obsessive factionalism (on all sides).
Remember JZ has never commented on the merits of his case save for his believe that this case is used to adress political interest of other individualls. He approached courts of this land on that basis. many times. Therefore if is found that such existed,then he has to be given a benefit of doubt which same was done by the NPA. lets not ignore the reasoning of the NPA. It is because of this abuse which has always been raised by the accused that charges were dropped. The merits becomes immaterial because such was never entertained at length by the accused at any stage. An opportunity never existed in court for him to plead.
He explored all the legal avenues to maintain his claims of abuse of power and political meddling in his case. Only when he had an opportunity in court would we have heared his side of story regarding charges brought against him.
The NPA was correct to interprete the abuse to prejudice the accused in not enjoying the rights like any other citizen as Mpshe has alluded. There was no need to touch on the merits at this stage.
mel // Apr 8, 2009 at 3:35 pm
NIA confrimed that they(tapes) existed. why people keep questioning their authencity?
Because Mel audio Tapes can easily be manipulated and edited but what worries me is you dont seem to be phased that a privite citizen can get his hands on NIA material? That is a major National security breach, and whats interesting in the Hlophe in his hearing with the JSC is it would also appear that NIA was been spying on the Judiciary within the time Hlophe tried to influence two judges and how a judge who is seen to be Pro Zuma can land up with NIA material implicating people who are involved in the arms deal.
Put two and two together if the Conspiracy is correct Mbeki’s choice of weapon was the NPA, Zuma’s choice of weapon was the NIA going at each other and its not surprising that the head of Intellegence is pro Zuma (Lindiwe Sisulu ) as Zuma has a very close relationship with intelligence just look at his CV
and it would also explain why the scorpians and the NIA didnt get on very well
None of you have tried to answer the question:
10. Was there really a need for a conspiracy if there was so much evidence to convict? (This one doesn’t make sense, either these conspirators are really stupid or they are plain mad)
mel // Apr 8, 2009 at 3:53 pm
so in other words we should just forget about the strong evidence that exist against him?
what about the Mauritius documents that implicates Zuma and Thint of bribery? that was obtained with out any abuse of structures in fact it was obtained through a court so explain that? should that just be swept under the carpet?
I cant believe people enjoy avoiding the real issue here. People are concerned why a private person got his hands on NIA material. Why cant we have people saying after all JZ was correct with his allegations of abuse. Why cant we have peolple being happy that the truth may have finally came to the forth?
The reason the answwer to the above is in the negative is because of the hatred people in this blog has shown to the oncoming president. Oh. perhaps is people just have nothing to campaign agaist him(JZ)
Was there really a need for a conspiracy if there was so much evidence to convict? (This one doesn’t make sense, either these conspirators are really stupid or they are plain mad)
the only conspiracy is coming from Zuma, I would not fall into the same trap as Mpshe did with the tapes as they have not be proven to be legit to confirm a conspiracy, so your question has no bases right now.
mel // Apr 8, 2009 at 4:06 pm
Thats the point Mel what proof do you have, how would you feel me being a private citizen had audio tapes of you that I obtained from the NIA cheating on your husband or boyfriend and I entrap you?
If national security does not seem to bother you and is not a real issue for you then why debate this?
Garg Unzola: your answers are very strange and you argue against your own facts. You call the leaking of the Browse Mole report as being accountable. Maybe you must call the leaks of the tapes as accountability too. The email saga was that accountability.
Either way you say if the NPA had taken the case to court and lost then the ANC would have been incompetent when choosing legal experts to serve as public officials. If they would have won then would they then have been competent? How many cases has the NPA and state prosecutors lost? How many cases have prosecutors of any country lost cases, must we now regard them as incompetent?
I have asked all the bloggers and the Professor before: Do you have proof or evidence in relation to the Zuma case?
Please let us know, if you don’t want to tell us, at least give the evidence to Zille so that she may prosecute
Chris Mcdaniel // Apr 8, 2009 at 4:02 pm
what about the Mauritius documents that implicates Zuma and Thint of bribery? that was obtained with out any abuse of structures in fact it was obtained through a court so explain that? should that just be swept under the carpet?
The fact remain the institution that initiated the proceedings decided to drop them. We cant comment on other incidental issues that followed as part of investigations. They may have been obtained without abuse of structures but were on the instance of the NPA.
the only conspiracy is coming from Zuma, I would not fall into the same trap as Mpshe did with the tapes as they have not be proven to be legit to confirm a conspiracy, so your question has no bases right now.
Chris Mcdaniel: You can’t even answer the question. The NPA says there was a conspiracy and you don’t believe them. They say they have enough evidence to convict and you believe them. So they are lying when it suits you and they are not we you feel like it. I like the mentality.
I ask again: Was there really a need for a conspiracy if there was so much evidence to convict? (This one doesn’t make sense, either these conspirators are really stupid or they are plain mad)
mel // Apr 8, 2009 at 4:14 pm
ok so we must just throw the murder weapon away then?
Since you missed this Samaita // Apr 8, 2009 at 1:06 pm I would suggest read it, please dont confuse me ive already voted for my president im taking an unbiased look at this and i would suggest you do the same, as i feel Zuma should still be charged and the probe into the tapes confirmed and McCarthy and Co be charged along with Zuma
Thomas
The NPA says there was a conspiracy and you don’t believe them.
No I dont until the probe is finished with the tapes then if confirmed then i will believe them but you doing exactly what you and the zuma supporters have been “victimized” about trial by media doing exactly to McCarthy and Co
sorry but try be alittle unbiased here
so your question has no legal bases no legal facts until the probe is confirmed, that im afriad is law
So Chris, you only believe the NPA when it says it has sufficient evidence against JZ,yet you have not seen that evidence and same have not been tested in court.
You need to be honest with yourself and admit that you wish to have JZ in court and nothing else. Why dont you believe the institution that initiated the prosecution when it says there was conspiracy but believe it when they say they have sufficient evidence against him.
Mel
“So Chris, you only believe the NPA when it says it has sufficient evidence against JZ,yet you have not seen that evidence and same have not been tested in court.”
Lol so you would believe the tapes even tho it has not been tested in court and you have not seen it either? abit hypocritical arnt you?
No i think you need to be honest with yourself and ask why the ANC did so much damage to the NPA and the NIA for what? Im blaming both Zuma and Mbeki but most of all im blaming the ANC as you act as a collective and note that there is life outside the ANC like i noted there is life outside the republicans and voting democrates
Mel
one last thing Mel the evidence that the NPA has on Zuma was also based on Shaiks and was tested and triad in court hell even the judge said that there was enough evidence to convect them both but it was bizarre that only Shaiks is convected.
See i like to work on the bases of structure if the tapes are confirmed then ill be happy to say the Zuma is correct, simply because this will prove that Pikoli is right on Mbeki interfering and guess what Pikoli will get his job back
I’m sure we’ve all noticed that Thint is now ’scott free’, and after all, wasn’t that the purpose of their bribe, that Zuma would protect Thint from any arms investigation. Must be one hell of a loyal guy. Looks to me like he completed his contract. Next comes the proverbial pardon and business (read crime) as usual with Shaik(s) Inc. Now that many of us have been correct for years with our paranoia and justifiable fears about organized criminal activity by government, whats the consensus on the future. Perhaps we should all take a shower.
On a more positive note, its good to see the country so incensed, shower fans excluded of course. Actually gives me hope that this very serious drama is hardly over, election or not.
Do you have proof or evidence in relation to the Zuma case?
Yes. Shaik was imprisoned for securing a bribe for Zuma. Zuma took that bribe. A court found that there was a mutually beneficial relationship between those two crooks. Case closed. We KNOW Zuma is guilty of corruption and fraud. It’s not a case of requiring evidence, the evidence has already been tried and tested. If this evidence was enough to send Shaik to prison, how can it be somehow lacking to implicate Zuma in a bilateral crime?
How does it absolve Zuma when he illegally spies on representatives of the government?
Garg Unzola // Apr 8, 2009 at 5:04 pm
a correction
Supreme Court of Appeal (SCA) in there “OWN WORDS” please note and i repeat in there own words stated that generally corrupt relationship” between Zuma and Shaik exists
Thanks Chris.
Thomas, not sure what you are on about. The conspiracy was needed by whom? The “conspiracy” such as it was, was to prosecute Zuma in the first place. It was probably Mbeki’s attempt to keep him from succeeding him. Its a conspiracy as far as Zuma is concerned becuase he knows of others who made far more out of their corruption in the arms deal than him and yet they have never been prosecuted. It just wasnt fair. If Zuma was an honest man, he’d have done a deal with the NPA, told them who else was guilty, turned state witness, resigned and redeemed himself. Now he’s just another African big man, corpulent but small of mind and with fewer morals than an alleycat and corrupt to the core. Lucky us….
Its a conspiracy as far as Zuma is concerned becuase he knows of others who made far more out of their corruption in the arms deal than him and yet they have never been prosecuted. [sic]
So in your own works, you agree that Zuma was corrupt in the arms deal. That’s a start. However, every one of those people implicated are innocent until proven guilty. It is also true that having a prior conviction, like say that of Shaik, greatly enhances the chances of successful prosecutions of the others involved. The prosecution of Zuma is thus vital to ensure that all those involved are brought to task.
Without Zuma’s prosecution, the message that the government is sending out is: “We couldn’t prosecute Zuma despite prima facie evidence and an air tight case built up by the best legal minds in the country. Therefore, we will be wasting tax payer money if we even try to bring the others involved to justice.”
This is precisely why it’s not a question of Zuma, it’s a question of the rule of law.
The argument that Zuma should be let off because there were other people involved who weren’t prosecuted is shoddy at best – that’s like saying if I went with some mates to somebody’s house, and murdered him, but my mates weren’t prosecuted, I should be let off because it’s not fair. Even if it were true that we should have all been prosecuted, if for some reason that were not the case it would still be no grounds for letting me off.
This is not about a man, this is now about a symbol. JZ, through his dubious dealings, and repeated attempts to derail his prosecution based on political conspiracy arguments as opposed to the merits of his case, as well as his views on homosexuality and women, has become a symbol for all that is wrong with government today. He is symbolic of the self-serving get-rich-and-powerful-at-all-costs attitude of the BEElite. He is symbolic of the corruption which pervades down to the lowest levels of government, as ANC cadres mismanage departments and misappropriate assets as they please, knowing that they will escape charges and simply be redeployed elsewhere if it ever comes to light. He is symbolic of the attitude of the ANC towards SA – WE are the true liberators, it is OUR country now. He is symbolic of everything that is wrong with the ANC.
This is why he must be prosecuted, this is why he must answer for his actions – to show the ANC that they are not simply entitled to rape and pillage our nation. They are not entitled to fiddle while Rome burns. They have a duty to be accountable to all South Africans as the government, not simply the ANC NEC or NWC. This is why SA needs to ensure that Zuma faces the music – we need to send a message to the ruling party that they exist not for themselves, but for millions of South Africans who have bought into the “New South Africa” dream.
By forcing Zuma into court, we the people (to borrow an American term) will be telling the ruling elite – “If you wish to engage in improprietous actions you will answer to us for it. If you are innocent, we will accept that, but you will be held accountable where there is evidence that you are not innocent.”
The Constitution states that SA belongs to everybody who calls themself a South African, not simply card-carrying ANC members (or SACP and Cosatu members either). Zuma does not represent himself, the ANC, or the tripartheid alliance – he represents 50 million South Africans, as he will be the next president. He has a duty to answer to all of us, based on the fact that the NPA still believes it has a winnable case against him.
Pierre, this morning I thought I heard you say that you were wondering whether any court would be “brave enough” to deal with the DA’s application for a judicial review. No, I lie, you really did say that, and it scared the $#!t out of me. For a constitutional expert to come up with such a statement is especially shocking.
Section 165(2): “The courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice”. So, the day when politicians start to lean on them will be when we can kiss our entire judiciary good-bye. Please, please tell me that day has not already come.
I see PdV has now turned to one way propaganda. Not even bothering to answer posts anymore.
The Big Slipper once again summarises the issues so eloquently!
Personally I would have liked to see Mpshe have the balls, at the press conference, to announce the charges against JZ would stand and charges persued against those who tried to interfere with the processes of the NPA.
I find it deeply ironic that certain members of the unholy trinity (tripartite alliance) continually defended JZ’s right to be presumed innocent are now making outrageous demands that the World Bank suspend McCarthy.
I am also dismayed that amongst all the celebrations surronding the withdrawal of the charges, that people forget the FACT that JZ received money from Shaik and then reciprocated with political favours!!
I agree with Archbishop Tutu, I am not looking forward to having Jacob Zuma as a president.
Ozoneblue:
There’s no point in feeding the trolls. You are an idiot. Don’t be surprised when nobody wants to be seen engaging with an idiot.
“Where there is smoke there is fire”….no one “appears” clean, little comfort for voters here.
Why the decision by the NPA to discontinue prosecution against Zuma is 100% correct?
The case dragged for close to a decade. It was always taking off and crashing with disastrous consequences. It even prompted, a one judge Msimang of Pietermaritzburg High Court to make the observation that the case limped from one disaster to another.
Indeed the NPA’s handling of the case, if there was a case to begin with, was so prejudicial that the conclusion it has reached, to decline prosecution was only logical.
1. Mr Zuma was placed in a platform that was extremely tenuous, where in public pronouncement were made about a prima facie case against him, that Mr Ngcuka, the national director of prosecutions was not going to act on.
2. The consequence of this was that he was tried and found guilty by proxy in Schabir Shaik’s case in the public realm.
3. At the time the man at the helm of NPA, Mr Ngcuka had also invited the media editors, seeking their assistance in slaughtering of Mr Zuma in the kangaroo court of public opinion.
Did this treatment/behavior against Zuma have anything to do with the supposed prima-facie case against him?
Why was the NPA violating Mr Zuma right, to afair hearing/trial?
Why was the NPA violating Mr Zuma right to dignity?
Why should the supposedly independent constitutional institution behave in this politically biased manner? The answer of course is clear. It was a political manipulation, to a particular end which was not very clear at that time, but as events would unfold, would reveal itself.
Why if the NPA had a solid case in 2003, did it not prosecute Mr Zuma?
In 2007, why is Mr Ngcuka who is no longer a member of the NPA, giving instructions to the NPA about the timing of the charges against Mr Zuma, seemingly to influence a political outcome of the ANC conference that year in Polokwane?
It is because of its actions that the NPA contaminated itself, thus became a poisonous tree, whose fruits could not be submitted to a court of law for consumption.
Accordingly the decision to discontinue prosecution, is a correct one. Furthermore thy owe the nation as a whole and Mr Zuma in particular an apology for this shameful abuse of power.
Njabulo,
You don’t drop charges based on emotions. You must have some legal basis for doing it.
So far, in all your subjective verbiage, you have not provided a single legal basis for dropping the charges.
Although we are sliding toward a Banana Republic, we aren’t there yet. Decision such as these should be founded on a strong legal basis.
If you voted Zuma as your President on emotions, it does not mean we have to run a country as such.
Now Zuma tells us that the money he received from Shaik were loans. That’s utter rubbish. Judge Squires found beyond a reasonable doubt that they were not loans. He just incriminated himself.
What if McCarthy is right about the timing and decision to prosecute Zuma to have been made by Mpshe and Mngwengwe? Do we still talk in terms of meddling by Ngcuka and McCarthy? Do we still talk about meddling at all?
Dumisani Mkhize @ 3:50 am
“Do we still talk in terms of meddling by Ngcuka and McCarthy? Do we still talk about meddling at all?”
How extremely bizarre that many Saffers can see no problem whatsoever with the mere fact that Ngcuka as a private citizen was still being briefed by McCarty on highly confidential matters even when he had resigned as director of NPA three yours ago.
yes and how bizarre must saffers dont see a problem with Zuma is a private citizen who can get his hands on NIA material??
Dumisani Mkhize
Your arguments are extremely weak
Yes there was a case to begin with as De Lille was the whistle blower who turned state witness or did you forget that?
1)Yes Mr Ngcuka did say that but you seem to forget he was replaced by who??? Pikoli who stated there is a case and a winnable one against Zuma hince the first charging of Zuma…or did you forget that?
2) No he was found guilty by a High judge and the SCA who said in there own words there is a “corrupt relationship between them” and Squires who said that it was Bizarre that both men are not in the dock as there is enough evidence to prosecute them both….or did you forget that?
3) It is the JOb of the NPA to inform public of high ranking prosecution or did you forget that?
Is this a joke?
“Why was the NPA violating Mr Zuma right, to afair hearing/trial?
Why was the NPA violating Mr Zuma right to dignity?”
um let see since tax payers were paying for his legal defence he was in the position to afford the best defence this country could ever offer or ever had with the amount of money thrown at him to do so……or did you forget that?
please people catch a wake up
Read this
http://www.mg.co.za/article/2009-04-09-the-npa-is-very-upset-about-it
Well well well the plot she is thickening
This has got to be the next theme plot for a New JAMes Bond movie
“The Spy Who Saved Zuma” I like it its catchy, i would go and watch that
http://www.mg.co.za/article/2009-04-09-the-spy-who-saved-zuma
NIA seems to be making a few blunders here
1) NIA is mentioned in the JSC yesterday with the hearing against Hlophe having leaked documents that he got from friends in the NIA
2) then NIA deputy head fraser seems to have leaked the tapes to Zuma’s lawyers
but this is the question:
How did McCarthy “manipulate the legal process”? The recordings make it clear that the alleged conspirators — McCarthy, Bulelani Ngcuka and Mzi Khumalo — differed over when to recharge Zuma, and Mpshe confirmed on Monday that he made an independent decision to recharge Zuma after the Polokwane conference.
even Tlali Tlali publicaly stated that they never recieved the full transcripts from Zuma’s team only a little snippet.
WTF is going on?
Chris Mcdaniel @ 7:54 am
“yes and how bizarre must saffers dont see a problem with Zuma is a private citizen who can get his hands on NIA material??”
Exactly. They are so accustomed to the continuous leaking of NPA material it almost goes without saying. What we have seen here is the classical Ngcuka/McCarty/Pikoli strategy of leaking confidential NPA information to the media backfiring.
I don’t believe for one second that the Zuma lawyers would have obtained such information in an illegal way. I believe Zuma’s legal team including blokes like Judge Heath are much too competent for that.
ozoneblue // Apr 9, 2009 at 9:04 am
well im afriad we will have to see what comes of the Probe but what im liking right now is two things
If the tapes are la legit – Pikoli is right about Mbeki
and there seems to be momentum now on a judge to do an independent investigation into the arms deal.
but Ozoneblue answer me this
How did McCarthy “manipulate the legal process”? The recordings make it clear that the alleged conspirators — McCarthy, Bulelani Ngcuka and Mzi Khumalo — differed over when to recharge Zuma, and Mpshe confirmed on Monday that he made an independent decision to recharge Zuma after the Polokwane conference.
So if Mpshe confirmed on Monday that he made the independent decision….how does this lead to a conspiracy theory?
and why wasnt the NPA given access to listen to the entire transcripts of the tapes but only a snippet?
One thing you and i can agree on is the arms deal needs to come out however you will protect your leader at all cost.
Pierre’s post does not explain how the NPA legally get around the Supreme Court of Appeal’s ruling that “a prosecution is not wrongful merely because it is brought for an improper purpose”?
A legal card I would play if i was the opposition party
The 7th of JUne is when the judicial review will make its decision on the NPA statement.
Which actually could have a great chance for success.
but what i would do in the meantime is a discretionary remedy of an interim interdict this alone blocks Zuma from becoming president until the court had made its decision aboout the NPA statement.
In order for such an interdict the requirements are
a)prima facie right,
b)well-grounded apprehension of reasonable harm if the interdict is not granted,
c)the balance of convenience favours it being granted, and that the applicant has no other remedy.
Chris Mcdaniel // Apr 9, 2009 at 9:24 am
“How did McCarthy “manipulate the legal process”? The recordings make it clear that the alleged conspirators — McCarthy, Bulelani Ngcuka and Mzi Khumalo — differed over when to recharge Zuma, and Mpshe confirmed on Monday that he made an independent decision to recharge Zuma after the Polokwane conference.”
All of that imo is totally irrelevant. What we did see for sure is that the NPA/Scorpions were headed by impartial and subjective officials (some of them ex-officials who had no business with the NPA anymore) ) who were abusing their powers and trying to manipulate the persecution process to achieve extraneous results.
It is not this or that. It is the integrity and credibility of the NPA and therefore the judicial process behind the prosecution of Zuma that lies in taters. Mpshe had no other choice.
damn. That should have read “partial and subjective officials”.
Ozoneblue
You confuse me…..you believe in the rule of law and you believe in equality before the law? yes?
The decision was not the right one, why because of this…… why is the probes into the tapes only being done now? and why wasnt the full recordings given to the NPA and just some shoody snip bit? Mpshe stated everything is legit but it clearly isnt because there is a probe into the tapes now, so something is wrong here
How is that irrelevent how did McCarthy manipulate the legal process? the fact is the final decision to charge Zuma was Mpshe not McCarthy and co. and they on record for stating so
this is what should of happend, the investigation into the tapes and a full transcript given to make sure nothing is taken out of context or manipulated. Then do not drop charges for Zuma but just as equaly charge McCarthy and co, therefore everyone is charged and the court can make the finial decision, that way the NPA is seen to act creadible and acting fair and with out favor, can we agree here?…..that is what should have happend. charge everyone and let the courts decide….its realy that simple
Garg, you are the idiot here, not Ozone! I told you yesterday already, as confirmed by Clara, that your beloved Professor Pierre De Vos – a lawyer, a lecturer and an intellectual who always engages on matters of public discourse – has UNDERMINED THE JUDICIARY ON AIR. Not only was Tim Modise of SABC ’shocked’, but even the DA lawyer who was a co-participant with De Vos expressed his ’shock and worry’ about De Vos’s “BRAVE ENOUGH” statement! He embrassed himself even more when he tried to explain what he meant. Prof, wherever you are man!, I demand an explanation of what you meant yesterday morning on SAFM! Stop avoiding us: We DEMAND your detailed explanation, cos it would appear that you shocked even lawyers!
spuy, grow up man, dropped your lipstick….honestly you really are being to touchy…..go get laid have a wank and relax
To me, and indeed to many, it would appear from your interview on SAFM that if the DA s review application can be turned down, as you now ironically somehow acknowledge on your post above that either outcome is possible, the court wouldnt have been “brave enough”. I am seriously offended by your statement Prof, very very offended!
Chris, just shut up! You and De Vos are always ranting about respect for the judiciary, now I supposed to ‘get laid and relax’ when De Vos does the contrary, on air nogal!
Chris Mcdaniel,
I am not sure what arguments of mine you are referring to (you seem to be addressing Njabulo). I merely asked questions.
McCarthy and Ngcuka may have been talking about the timing of the prosecution. But if their dialogue did not amount to anything, do we still say they meddled?
If the decision to prosecute by Mpshe and Mngwengwe was NOT influenced by Ngcuka and McCcarthy, do we still blame them for meddling?
These are questions, not arguments.
Spuy he is right to think that……….think about this if the court rule in the DA’s favor, what could potentially happen is youll land up with 2 to 3 presidents of south africa in the same court room.
We have already witnessed the attacks the ANC has displayed to the courts and the judiciary, do you think we can stomach this?
if so then good I actually hope it happens cos this would show the entire world south africa means business when it comes to corruption
Spuy // Apr 9, 2009 at 12:04 pm
stop throwing your toys out the cot….We demand…lol
Dumisani Mkhize // Apr 9, 2009 at 12:07 pm
i do apologies….
“But if their dialogue did not amount to anything, do we still say they meddled?”
well no, im sure people are alllowed to there own opinion
“If the decision to prosecute by Mpshe and Mngwengwe was NOT influenced by Ngcuka and McCcarthy, do we still blame them for meddling?”
only Mpshe and Mngwengwe the reason being is they are the heads, well im afriad acting this is what you get for actors, who dont have the strong personnality to come to there own conclusions about a matter
Spuy, Ozone, you are so offended by De Vos, but not offened by your corrupt hero lamabasting judges who found against him on points of law ( I can hardly believe he has the gall to say things like this bearing in mind the spurious cr@p he and his lawyers came up with) all the while failing to offer an explanation re the findings in the Shaik trial that Shaik had paid him for influencing contracts in the arms deal. So we have someone who is probably corrupt, has committed an offence regarding NIA spy material, been acquitted of rape (wonder who concocted that prosecution?)calling judges names. doesnt this seem just a tad bizarre and frightening to you? Or are you so far up his ass your world view has narrowed somewhat?
Spuy // Apr 9, 2009 at 11:50 am
“Prof, wherever you are man!, I demand an explanation of what you meant yesterday morning on SAFM! ”
I think the prof meant that South Africa is a banana republic where there is no freedom of speech and where the state controls the national broadcaster. It is so bad here that even our “constitutional experts” and our “liberal media” see no problem with the wanton abuse of state power to undermine political enemies.
Zuma takes aim at top judges
http://www.iol.co.za/index.php?set_id=1&click_id=13&art_id=vn20090409050224266C609125
What Jacob Zuma has said about the judges is deeply offensive to me. The camels back is broken. The ANC will not get my vote.
I am also questioning my membership of this party!
ozoneblue // Apr 9, 2009 at 12:17 pm
again what evidence do you have on abuse of state power, all you have is alligations.
my oh my how the tables have turned and you seem to be doing exactly what you have accused us of doing trial by media……
Im sorry but you and spam need to calm down and stop fantasising about Pierre
since your so on abut the NPA, any thoughts on the NIA?
Re: Zuma takes aim at top judges
Judges have been warned.
Make the “right” decisions or else…..
Chris Mcdaniel @12:30 pm
“again what evidence do you have on abuse of state power, all you have is alligations.
my oh my how the tables have turned and you seem to be doing exactly what you have accused us of doing trial by media……”
This has nothing to do with a trial by media. The NPA made an internal decision, regarding its own procedures and the abuse of process by its former head, using NIA surveillance that was legitimately collected – and have made those findings public.
The biggest newspapers on the other hand have been spectacularly silent about the shocking implications of those findings. No surprises there either since back in 2003 they were already conducting “off-the-record” meetings with the very same Bulelani Ngcuka as they were predictable and consistently fed with privileged information from inside the NPA. They were in fact complicit with Ngcuka and colluding with the state’s abuse of power. They have been the staunchest defenders of the “independent NPA and Scorpions” , despite overwhelming evidence that those agencies were abused for political purposes.
Bulelani Ngcuka who not only setup the NPA, but also recruited Leonard McCarthy and I would imagine plenty of other prosecutors/investigatory who shared his political vision for South Africa and an accompanying lack of appreciation of constitutional and judicial ethics. And guess what – even in 2007, three years after he “resigned” Ngcuka was still the hidden hand behind the scenes calling shots on how his political enemies should be prosecuted.
But I’m sure he probably wasn’t an Apartheid spy, or so said Mbeki when during the Heifer Commission when he was the only one allowed to study the state’s “security registers”.
Ozne and spam
The law is very clear on the interception of telecommunications as well as phone tappings.
Mr Zuma and Hulley clearly shot themselfs in the foot and SHOWED ALL OF SOUTH AFRICA THEY are the one’s who abused state organs IE the NIA
Let me educate you on LAW since you guys are lawyers….
that even if the recordings were intercepted legally, there is no possible way that they could be legally in Zuma’s possession. the mere fact that they are a 3rd party and are not government is illegal, it is called thieft
Mpshe entire arguments on dropping this case is built on stolen goods.
thank you and good night and have a wonderful easter
The hypocrisy of those who hate Zuma with a passion is glaring! All along when Zuma alleged political conspiracy he was mocked and challenged to produce evidence. Now that he has, against all odds, produced such evidence, the goal posts have been shifted. Now, he must indicate how he obtained the evidence of political conspiracy. When it emerges (as it has started already) that the evidence was handed to Zuma’s attorneys by a sympathiser within NIA, the goal posts will be removed completely!
This reminds me of a story my mother told me when I was a young boy – those who wanted to crucify Jesus were so hell-bent that they opted for the release from jail of well known gangster and murderer (forgotten his name)!
No bongs the fact is you and co support theft is glaring….christ is there any lawyers left on this blog?
Chris Mcdaniel @ 1:08 pm
“that even if the recordings were intercepted legally, there is no possible way that they could be legally in Zuma’s possession. the mere fact that they are a 3rd party and are not government is illegal, it is called thieft”
There are plenty of legal ways it could have landed in the hands of Zuma’s lawyers. Lets imagine for one second – Assuming the recordings were legally made by the NIA, someone inside the NIA could have leaked copies of those recordings to a big newspaper. Perhaps if that newspaper was the Sunday times they would refuse to publish such untested slander about their darling Bulelani Ngcuka, but some conscientious journalist with a passion for the truth might feel that it should be passed on to Zuma’s lawyers.
The lawyers never used those recordings as evidence in a court – they simply handed it over to the NPA as part of their representations on why they felt Zuma was the victim of a political conspiracy. .
Bongs @ pm
You are totally right bongs. Even PdV’s only reply has been to kill the messenger.
ozoneblue // Apr 9, 2009 at 1:19 pm
that is extremely weak im actually laughing my ass off
firstly Media is a public body it is not a private citizen
provide me legislation that a 3rd party who is a private citizen ill repeat a PRIVATE CITIZEN is alllowed to be in possession of NIA materials
The law was broken….ello??? so in all what ur saying im allowed to have NIA materials
The fact remains Zuma used and abused a state organ for his own political gains its as simple as that.
Zuma is not government he is a private citizen
NO PRIVATE CITIZEN IS ALLOWED TO BE IN THE POSSESSION OF NIA MATERIAL IT IS ILLEGAL ITS CALLED THEFT.
christ your even on about how no one on here cares that a state organ was abused…..well ello look what happend to the NIA…..or does the NIA not count?
Bongs just a question do you value your laws do yoh love your country?
cos i dont think you do
“When it emerges (as it has started already) that the evidence was handed to Zuma’s attorneys by a sympathiser within NIA, the goal posts will be removed completely”
Clearly you support theft and partisanship of an organ of state…….your just as guilty of crime and show no compassion or patriotism towards your country or your citizens but to a party instead as you are in support of national security breaches, you are a zimbabwean clone
Chris Mcdaniel // Apr 9, 2009 at 1:55 pm
I am an officer of the Court who took an oath to uphold the Constitution and I do love my country.
Here is a question to you: assuming the tapes were legally obtained by NIA (ie interception authorised by a judge) and handed to Hulley by a NIA operative and Hulley handed same to NPA as part of Zuma’s representation: which criminal offence has been committed by Hulley?
Let me try and simplfy the question for you: a ‘gintsa’ sells a stolen car to you with papers and everything, you buy a car not knowing that it is a stolen car – have you committed a criminal offence?
Bongs – I for one never doubted that there was some form of conspiracy against poor little Zuma. I mean how could he alone,of all the corrupt ANC cadre’s behind the arms deal being brought to book? It had to be a score settling exercise or power play by Mbeki or his faction. The fact is, this does not detract from the mountains of evidence the NPA gathered on Zuma that would, I have little doubt have led to his conviction. This is why he tried so hard to avoid court and eventually brought sufficient pressure to bear on the NPA to force their hand (despite them having a solid case against him which they confirmed) I dont agree in any way with what McCarthy and Nguka and anyone else involved did but I fervently believe that the only way this mess should have been resolved was for Zuma to face the music in open court, to spill the beans re the arms deal and for those guilty to be brought to book. That could never happen of course, because the ANC are not a political party, do not underrtsnad democracy adn believe they own SA and its citizens.To hear the hypocrit Zuma lambaste the CC and SCA judges sickens me to the core. No shame has showerhead, so shame at all.
Bongs // Apr 9, 2009 at 2:49 pm
ok so the gintsa (NIA) sells a stolen car ( saleman=Hulley) to you ( zuma) with papers and everything( Tapes) you buy the car not known that it is stolen car ( Hulley = lawyer should know that the “CAR” is stolen) – have you committed a criminal offence?
The answer is yes because hulley being a lawyer and a private citizen knows full while that being in possession of this “car” is illegal….the NIA is not allowed to give me a private citizen (just because i have a mate who works in the NIA) National security materials cos if thats the case would you mind if I phone tap you? who get them to video tape you having sex with your husband?
and you wanna tell me this?
I am an officer of the Court who took an oath to uphold the Constitution and I do love my country.
I didnt ask for a fairy tale story i asked for legislation where the NIA is allowed to give security documents to a private citizen about john joe?
I think you need to revisit your oath and law school again
spoiler: I am sure that if you believe in something you can never be convinced otherwise. JZ makes a statement about the fallibility of human being especially judges and he is disgusting? PDV and his followers did the same thing against a judge (Nicholson) and we don’t feel sick to the core. If you believe judge Nicholson can be wrong in a matter why can that not happen to the constitutional judges?
I have noticed that there is a section of people who can critised the Courts and judges and another that is crucified if they do.
Spoiler I ask you to read the article again. Don’t look that the foreword by the journalist, read the answers from Zuma.
Bongs // Apr 9, 2009 at 2:49 pm
let me further simplfy it for you, why didnt the NIA give the tapes directly to the NPA? instead they gave it Hulley….
Breach of national secuirty and theft…there was a procedure which was never followed. since you know your constitution, which constitution is now violated officer of the court?
Chris Mcdaniel // Apr 9, 2009 at 3:00 pm
Well, if you can’t grasp even the simplified version of my fairy tale – then I rest my case!
Chris Mcdaniel: Did you feel that the Sunday Times and its editor should have been charged for illegally obtaining medical documents of The honourable minister Manto Tshabalala?
Bongs // Apr 9, 2009 at 3:19 pm
you cant provide me legislation can you?
so cool im gonna get the NIA to video tape you and your husband going at it like animals then im gonna post it on the net, since you think this is lawful
Thomas
is the sundaytimes a private citizen?
Where is De Vos? By da way Chris, I am Spuy NOT “spam”, in fact, it is my real name. Maybe ’spam’ is your boer-grandfather s name so dont confuse me for him asseblief, thanks!
im so sorry spam i mean spum, sorry spuy…hey listen i got mates in the NIA we gonna video tape bongs getting kinky tonight would you like a copy? its all legal the officer of the court said so
is the Sunday times a private citizen?
So you are saying it was legal for the Sunday Times to have the honourable minister Manto Tshabalala medical records because they are not private citizens. Shall we then say the same for the browse Mole report?
If I sit here and I look at a chief justice of the Constitutional Court, you know, that is the ultimate authority, which I think we need to look at it because I don’t think we should have people who are almost like God in a democracy… Why are they not human beings? I don’t want to debate that now, but at the right time I’m keen to engage them before the issue becomes public.
Thomas same to you old boy. I think Zumas comments above are scandalous. What he wants is a subservient judiciary who would never dare find against him. The CC decided an appeal on a matter of law which had it gone Zuma’s way would have created problems in the administration of justice down the line. Once we have more cadre’s deployed as judges, this kind of decision will become common place and our legal system will slowly crumble. If you can’t see it, maybe you and I need to talk again in five years or so… Then again, maybe his statement is actually a ringing endorsement – “I am saying they are almost close to God” – well then aren’t they perhaps very close to the ANC which regards itself as having some god given right to rule or did the CC incur the wrath of God by daring to be “almost close to it”
spoiler: what’s the scandalous part? You seem to see or read in between the lines that he is talking about his own case; it is not mentioned in the paragraph you quote. It then says I quote: “He said the Judicial Service Commission should review the status of the Constitutional Court.” Is this wrong?
I would like you to quote a country where the leader and/or executive have no hand at choosing High court judges? If Zuma feels the judges of the CC must be chosen and/or elected by the Judicial Service Commission alone with the President only signing them into position no matter if he agrees with the names or not would you agree to that? Would you agree that the Judicial Service Commission should review the status of the Constitutional Court?
The leaking of NIA tapes isn’t theft. It’s TREASON.
If it is so easy for a private citizen to get hold of tapes containing taped conversations between top government officials can you imagine what foreign intelligence services have access to? There must be a crystal clear line from the NIA straight to the Chinese embassy.
@Khosi et al…
The IOL journo tried to spin JZ’s comments as though he was said:
“the CC judges think they are GOD”,
whereas he saying that:
“the IMAGE and PERCEPTION of the CC in the PUBLIC OPINION is that of an infallible institution ran by SUPERHUMANS who are incapable of mistakes, such that thir could lead to the public becoming UNQUESTIONING”.
As for the Moseneke issue, I still maintain that his comments were very unfortunate. He could have made his point (if it was indeed based on principle) without mentioning ANC or Polokwane.
To say that judges are FALLIBLE is a mere recognition of human limit, which CANNOT be the same as saying that their judgments should be REJECTED because they are fallible.
I think it is great that we will have a president who articulates on issues in a “real sense” without being too stuck up in “political correctness”. I’m confident that a JZ presidency will teach people GOOD LISTENING SKILLS.
Bongs @ 3:19 pm
You are correct bongs. It is useless arguing with that brain-dead troll. He reckons it is enough to SHOUT IN UPPERCASE cause that auomatically make him right.
I reckon the way you explained it must be what happened. There is no way in hell that Zuma’s defense team will commit such a fundamental, self-incriminating blunder.
And Mpshe did the right thing : presented with hard evidence of a political conspiracy he didn’t simply push ahead anyway because that evidence would be impermissible in court. He did the honorary thing motivated by a sense of justice and withdrew the case.
Ah, come on Thomas you cant be that naive! I wonder whose case he was talking about – did he mention any other great decisions of the CC upholding the rights of the poor and downtrodden? I believe in checks and balances, I believe in Judges chosen on merit (qualiffications and experience) and not because of party political affiliations or race. Let the president make the final call, but make him provide full reasons if he does not follow a recommendation of the JSC.
The ANC’s crit of Moseneke after expressed the CC’s independence from party political interests was pretty disgusting too, don’t you think.
How many other people apart from self serving members of the ruling elite have critted the CC like this? Most of their decisions are widely heralded but not by the ANC’s in power. Why, bceuase they crit the government on service delivery, interefere with dodgy government policy implimentation and therefore embarass the god like ANC. As i see it. the ANC does not believe in democracy or at least as its usually understood. The courts are just a hindrance to them and Zuma’s lip service to these concepts is nothing but that. Believe what you will, but this is how I see it at the moment. I am a cynic but I would like nothing better than to be proved wrong on all counts. i just can’t see Zuma doing that for me though. There’s still the solid case of corruption et al against him so he’s going to have to work really hard and he hasn’t started off very well… Five years time, okay?
Excuse the typos:
*he said*
*he was saying*
*and this could lead*
@Chris:
The Sunday Times is not a private citizen but its editor and the journalists are. Where exactly do you differentiate?
I think I will be very sensitive (to Justice Moseneke’s statement). And I think that is precisely the reason why we always say judges should know what they say … You can’t just stand up and say I don’t care what this ANC (sic), and it is a ruling party. You are just declaring war. Why should you say that when you are a judge,’ he said.” (IOL)
I ask you Thomas, what does Zuma want. A powerful independent judiciary or a Slippery Hlope version (did you see the man wink on eTV last night – they showed it twice
) Zuma/ANC = bad news for our consitutional democracy. See also
http://www.thoughtleader.co.za/traps/2009/04/09/dikgang-moseneke-the-man-for-all-seasons/
I think constitutional judges should refrain from making party political statements in public. Moseneke did just that and Zuma is entirely correct in criticizing him for that.
Alos not the double standards – Zuma (a “private citizen”) cannot criticizes a judge but PdV and the opposition can slander Hlope all they like.
That’s a retarded comparison. Zuma is three weeks from the presidency, a role that will put him in a position with significant power and influence in the CC (his administration will pick the next batch of judges). Technically he can say whatever he likes, but it doesn’t mean he should.
Moving on when is the head of the NIA going to resign after the MASSIVE security breach there?
Bongs // Apr 9, 2009 at 2:49 pm
No no no,
If you were representing me and used that example in court, I would stand up and fire you on the spot.
Pathetic!
Again Ozone, Hlophe slandered himself when he made some stupid admissions…
Bongs, regarding your proof of political conspiracy, it’s starting to look like the movement was more in favour of Zuma than against him…look at the facts again…
You can lead a horse to the water, but you cannot make it drink…sometimes I wonder how people can be so stupidly stubborn so as to refuse to see the parts of the picture which they’re told they’re not allowed to like…
So any news on how guilty Zuma is of spying on citizens?
How about how the acting NPA head disregarded McCarthy and Nguka’s rights to presumption of innocence?
I think we should support the call for an inquiry into the arms deal and let all the guilty parties (Zuma included) be brought to task.
Ozone, since when did Moseneke make a party political statement? Party political implies he took sides. As far as I recall all he said was that the CC owed SA an obligation to uphold the constitution, and was not beholden to the ruling party. An assertion of the indepenence of the judiciary in the face of mounting attacks on it from the likes of Zuma’s henchmen/women and in the best interests of us SA’s citizenry. Has Zuma promised all his vocal sycophants, like you, some drops from the feed trough because I can’t believe anyone can be as one eyed as you without being paid to do it?
Spoiler:
These are typical Zuma tactics. He’s trying to sow division among the CC. Judge Pius is going on pension come October so they need another scapegoat. That’s what you can expect with a populist leader. Obviously, Zuma owes Judge Hlope a few favours. My guess is Hlope will have a serious bout of influenza for the next couple of weeks, after which he’d make a miraculous comeback worthy of Lazarus. Kind of like the miraculous recovery of health that Shaik experienced once released from prison. Zuma may be Jesus after all.
I’m curious about the following:
Only the Constitutional Court may
1. decide disputes between organs of state in the national or provincial sphere concerning the constitutional status, powers or functions of any of those organs of state;
…
National legislation or the rules of the Constitutional Court must allow a person, when it is in the interests of justice and with leave of the Constitutional Court
1. to bring a matter directly to the Constitutional Court; or
2. to appeal directly to the Constitutional Court from any other court.
Does this mean that only the concourt may decide on the conduct of McCarthy and Nguka? In other words, whether they were fulfilling their constitutional duties or whether they were conspiring against that poor spineless maggot whom even Desmond Tutu has allegedly conspired against by now, one Jacob Zuma?
Also, does this not mean that the DA (or anyone else) could bring the matter of the NPA decision to drop charges against Zuma being reviewed directly to the concourt?
Bongs and Ozzhole
why is it hard for you to provide me an act or case law or any physical legal status on the NIA supplying a private citizen about John Joe? Thats all I want from you…..instead im getting static from you guys?
Bongs im beginning to think your a student, Ozne i know u got no legal bone in u so im not surprised by ur comments
Please this is a law blog, I need facts please, acts please, case law please on the status of the NIA on the private citizens matter. Im begging anyone…..???
@THomas
Did the Sunday times get sued for this?
Media falls under public body… when things get declassified
they go straight to the media. The media answers to the public. Public bodies and private citizens are completely 2 different relms…..so i dont understand what point your trying to prove? the fact that you, bongs, sperminater and Ozonehole cant grasp the fact of the danger of a private citizen getting hands on National security material about another private citizen is simply either selective, disgusting or just a lack of legal understanding or just a 3rd world mentality that this is ok for you and you have the cheek to say you love your country? and that its ok for theft and partisanship of an organ of state…….I say shame on you, all are equal before the law and you want to broke laws for one man? Make me sick you traitors you bunch of philistines rapers of law charlatans
Prof or anybody else,
Is there a site I can go to to access the Prosecution Policy?
Chris McDaniel @ 7:25 am
“Media falls under public body… when things get declassified
they go straight to the media. The media answers to the public.”
LOL> Do you honestly expect any of us to respond to such utter rubbish ?
Never mind. I found the prosecution policy.
Two issues: The SCA decision states that unless the motive for a prosecution was not to secure a conviction, the prosecution would be lawful. Zuma’s prosecution was therefore lawful. But the NPA CAN withdraw charges against anyone even when they had lawfully charged that person, BUT ONLY in terms of the prosecution policy. Their discretion is therefore circumscribed by the prosecution policy. Here charges were dropped without reference to the prosecution policy and hence the decision was not guided by that policy as it is constitutionally required to be done. The decision of the NPA was therefore ultra vires as they did not have the legal power to do what they had purported to do. It would be similar to a scenario where the law says an official of Home Affairs must issue a visa unless the applicant is disqualified because of a-d. Then the official refuses the visa not on a-d but on another ground not mentioned in the law. Such a decision would be illegal because it would not have been authorised by law. The dear readers above who argue about the morality of this therefore completely misses the point. Whether Mr Zuma was treated unfairly etc may be of interest politically, but as the prosecution policy reads now its is utterly irrelevant. Those who argue that the NPA decision was correct, support illegal action by an organ of state. Forget about Mr Zuma. Say charges of corruption against X is dropped not because of anything in the law but because X discovered a cure for HIV. That decision would be just as illegal as the present one because the prosecution policy does not provide for this. We call this THE RULE OF LAW. Why is The Rule of Law important? because where state organs start to act not in terms of the law but in an arbitrary fashion, they can potentially make ANY decision they want, no matter how dangerous, reactionary, facist or dictatorial. Life becomes potentially nasty, brutish and short and us normal citizens become fearful of the state.
Those who think Zuma was hard done by and still want to make us believe that they respect the The Rule of law must argue that the prosecuting policy is wrong and must be amended. They cannot argue that the decision was lawful. Sometimes what is lawful is not just and what is unlawful is just, but in a democracy one must be careful to propagate lawlessness, which is what those supporting the NPA decision is in effect doing.
Pierre De Vos // Apr 10, 2009 at 5:49 pm
Which brings us back to section 179 of the constitution:
“179.4 National legislation must ensure that the prosecuting authority exercises its functions without fear, favour or prejudice.
179.5 The National Director of Public Prosecutions
3. may intervene in the prosecution process when policy directives are not complied with; and
4. may review a decision to prosecute or not to prosecute, after consulting the relevant Director of Public Prosecutions and after taking representations within a period specified by the National Director of Public Prosecutions, from the following:
1. The accused person.
2. The complainant.
3. Any other person or party whom the National Director considers to be relevant.”
Mpshe was presented with hard evidence that the prosecuting authority did not exercise its functions “without fear, favor or prejudice” and in direct contradiction to the constitutionally bound policy directives.
Case closed. Finish and klaar.
Ozoneblue. You are wrong. Read section 179(5)(a). The discretion in 179(3) and (4) are circumscribed by this section. The policy directives are those set out in the prosecution policy. This policy was not adhered to in this case.
Pierre De Vos @ 6:22 pm
So instead of talking in circles with long convoluted argumentation and making emotionally loaded statements like “Problem is, the UK does not have a written Constitution and no section 179(5),” show us the “prosecution policy” that you as a “constitutional expert” claim rubbishes “179.4 National legislation must ensure that the prosecuting authority exercises its functions without fear, favour or prejudice.” and that you believe that Mpshe is ignoring.
Any link to a pdf file or a website will do fine thank you.
Prof, interacting with you almost daily via this blog, I ve always admired how much you tried to be neutral in the media as would be expected from any analyst/expert. But having made a veiled, in fact, unveiled attack on the courts for not being ‘brave enough’ did not only offend me and I m sure many, but definately put your entire credibility in to disrepute. So for the last time Professor Pierre De Vos, please explain in detail what you meant by your “brave enough” statement on SAFM to Tim Modise and the DA lawyer!!!
Have only managed to read through about half of these responses but a thought just struck me. Please forgive me if it’s totally unrealistic.
There were allegedly 800+ charges against Zuma (all of which are now supposedly null and void)?
They (FBI?) tried for years to convict Capone on racketeering and fraud charges and it was only when they changed tack that they successfully convicted him for tax evasion.
So, if no one is able to reinstate the current charges against Zuma, isn’t there something else they can ‘get’ him for… like tax evasion for eg?
Maybe some more creative thinking is necessary. Though, after he’s elected (which I and many others assume is a given), presumably he’ll (unfortunately) be immune from all forms of prosecution.
Spuy, as I said on SAFM. In I believe judges in SA are independent and act without fear favour or prejudice. But there has been an extraordinary attack on judges by the ruling party. They have been called counter-revolutionaries and only this week the President of the ANC said the Constitutional Court has too much power. In such a climate it takes a brave judge to do the right thing. Luckily our judges are brave. Pity the politicians are not.
ozoneblue // Apr 10, 2009 at 9:23 am
you keep avoiding my question? None of you can answer my question………so then we all agree that the tapes are illegal unless you can prove me otherwise, which so far you cant…sorry for you.
“Any link to a pdf file or a website will do fine thank you.
to my question.” lol
ozoneblue // Apr 10, 2009 at 9:23 am
oh shit im sorry, they answer to the ANC
Ozoneblue, I posted the relevant sections of the prosecution policy on this Blog on Monday. Did you miss it? Or was it a bit inconvenient to be faced by the law?
Pierre De Vos @ 6:22 pm
Ok Pierre at the expense of repeating this simple request – can you kindly provide a link to the NPA “prosecution policy” or tell me we where I can get a copy of it s that I can see for myself how it trumps “179.4 National legislation must ensure that the prosecuting authority exercises its functions without fear, favor or prejudice.”
I would love to see where the NPA is now “breaking the law”.
Ozoneblue, I do not have a link. If you type in a sentence from the policy on Google you will find it. But you are making a mistake of logic. Section 179(4) states legislation says one must prosecute without fear, favour or prejudice. Thus the NPA Act prohibits anyone from interfering with the prosecuting authority and makes this a criminal offense. It does NOT say (and neither does the NPA Act) that when there are allegations of interference the NPA must withdraw charges or even that the NPA CAN withdraw charges. It says, inline with section 179(5) that the NPA can only make such a decision in accordance with the prosecution policy. You are confusing two things that are legally separate. You may – I concede – legitimately argue that as a matter of policy when there is ANY interference in the process the NPA must or could drop charges. But then your remedy is to argue for a change of the prosecution policy – as this policy does not provide for this at the moment. That is why – in my opinion – the decision of the NPA was not taken in terms of the law and thus was ultra vires and void.
PdV
“Ozoneblue, I do not have a link. If you type in a sentence from the policy on Google you will find it. But you are making a mistake of logic.”
Well I suppose then we have to conduct a debate where you have full and unfettered access to the said “prosecution policy” and the rest of us mere mortals have to grabble in the dark and just accept on face value what the “constitutional experts” tells us to believe.
Did it ever occur to you that you “constitutional experts” are now also behaving like high priests speaking on behalf of God ?
ozoneblue // Apr 11, 2009 at 8:47 am
did it ever occured to you that you just another zimbabwe clone?
answer my question with a legal reference and then ill show you how the NPA broke its own policy and the law…Fair? or are you going to be a winkie puff again?
Thanks to The Big Slipper for his comments of Apr 8, 2009 at 6:34 pm
I am neither a liberal nor a nationalist. I do not share the same confidence most put in democracy but I do not support anarchy. I dislike politicians because I see so little honesty and so much self interest among them. I would feel hopeful if political parties allowed their parliamentarians to publically challenge their own parties where they believed the party was wrong without being expelled. But it seems that dictates of conscience and honesty are forced to bow to the party line.
Does it mean that because there are no ANC parliamentarians who are calling for a proper independent investigation of the Arms Deal or determined to get to the heart of the Zuma saga that not one of them is honest? Or could it be that they are scared of the consequences?
If Jacob Zuma does not feel he can get a fair trial despite the best legal minds and unlimited resources available to him, then what hope is there for ordinary citizens in SA courts? Now is the time for honest politicians, if there are any, to be brave and to refuse to allow this matter to be swept under the carpet. The issues that The Big Slipper has raised need to be addressed.
@ Ozoneblue
This is the post PdV – with characteristic restraint – referred you to:
http://constitutionallyspeaking.co.za/?p=933
1. Highlight the above URL.
2. Place cursor over highlighted URL and right click.
3. Choose “Copy”
4. Place cursor in address bar.
5. Right click and choose “Paste”
6. You’ll be taken to a post you submitted 16 separate ‘comments’ to without, apparently, first reading. And you complain about being ignored?
PdV
Is the decision to prosecute based on the NPA policy document alone? Does the NDPP not execise any discretion on the matter? Is the any law that states that the decision to prosecute must be based soley on NPA policy? Crucially, how is NPA policy made & adjusted?
JJ, I have explained this quite ad infinitum. Read Section 179 (5)(a) of the Constitution as well as the prosecution policy. The Constitution says the NPA must follow the policy. This does not mean it has no descretion. IIt means its discretion is circumscribed by the policy. If it exercises its discretion in a way that does not adhere to the guidelines set out in the policy, it acts illegally.
Pierre, yours is a contrived argument.
Its clear that there’s been colossal political interference in this case. I was taught at law school that where a prosecution steps outside the bounds of law, it becomes illegal to prosecute.
Hence where a wiretap is obtained illegally police can not use perfectly good evidence in a prosecution.
I hate to say it but the NPA made the right decision not to proceed on Zuma.
Whether they will make the neccessary second decision to prosecute Zuma’s teams illegal possession of tapes, that remains to be seen.
Wessel:
The prosecution did not step outside the bounds of law. Realise that all the evidence gathered for Zuma’s case was found to be legally gathered – even after tiresome appeals. Even after appeals to the Mauritian court. Zuma’s case is solid.
Realise also that the Harms ruling found that political interference is irrelevant, as this does not make the case against Zuma magically disappear. Zuma still has prima facie evidence against him which was not tried in court.
The only evidence which was illegally gathered here are those tapes. The NPA did not gather those tapes. Zuma somehow came to be in possession of classified information. Zuma actually implicated himself more than anyone else, because his defence is the only party here which brought illegally gathered evidence.
The decision not to prosecute Zuma means that that evidence will not be tried and tested in court. We are told to rely on the opinion of a man who was obviously put in his NDPP position because he would be sympathetic to Zuma’s case. Ask yourself if Pikoli would’ve found the same?
I agree with you that whomever came by those tapes should be prosecuted too and the contents of the tapes should be made public in full. McCarthy and Nguka also have rights and their fate should also be decided by a court – just like Zuma’s fate. Except now, your reasoning that illegal evidence is counting against them counts. However, this does not count for Zuma as all the evidence against him was gathered lawfully and legitimately.
PvD
“There is no rule in law, which states that all the provable cases brought to the attention of the Prosecuting Authority must be prosecuted. On the contrary, any such rule would be too harsh and impose an impossible burden on the prosecutor and on a society interested in the fair administration of justice”. – NPA prosecutions policy.
Your argument seems to contradict the policy you refer to. The policy gives guidelines & allows the NDPP descretion to apply his mind to the specific details of the case in front of him. Once judges start compelling prosecutors to prosecute cases they believe are comprimised, the seperation of powers between the state and the judiciary would be comprimised. Judges should operate within the laws of the republic and resist the temptation to legislate from the bench. If they overturn the NDPP’s decision, without any legal framework to justify this, we will be moving into dangerous territory.
I now understand why Mpshe did not quote from the Prosecution Policy. His report is a plagiarized version of a judgment by a Hong Kong judge. See this: http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page72308?oid=125134&sn=Marketingweb%20detail
Dumisani Mkhize // Apr 14, 2009 at 6:43 am
That is damning
so much for him applying his mind
“It is clear that where a person is charged but the purpose of charging a person was never to secure a conviction the case could not proceed. But what should happen in a case like this when the person was clearly charged with the purpose of securing a conviction but the timing might have been used also to secure a political purpose, namely to defeat Zuma at Polokwane?”
Prof, your hypocrisy is, with respect sickening!
Before Zuma could even secure evidence to prove that there was political meddling in his case, you went on record and stated that Mbeki never intended Zuma to be prosecuted and convicted. All he wanted to do was to scare him away from politics, hence Ngcuka’s decision not charge him together with Shaik. You even stated that failure to charge Zuma together with Shaik was a political favour to Zuma and he should not complain! Even after Shaik’s conviction Mbeki asked Zuma to resign but Zuma refused forcing Mbeki to fire hims as Deputy President. By then Mbeki had realized that Zuma was too stubborn to quit politics voluntarily and Pikoli was let loose on him. Probably this explains why NPA was not ready to proceed with the case in PMB!
Prof, I may be paraphrasing but these were your views back in the day. Are you now saying that if the initial political strategy was not to secure conviction but to banish Zuma from politics- when that strategy did not yield the desired political results and was replaced with a strategy to secure conviction so as to to defeat Zuma politically – all is well???
I can’t believe this!
JJ, you are cherry picking. You must read the whole of section 4 as this sets out the factors that constrains the exercise of the discretion which I have acknowledged the NPA has. It is NOT an unfettered discretion. Read section 4 of the policy. Then read it again. Then argue.
jj @ 11:47 pm
Interesting – the only online reference to the NPA “prospection policy” as PdV posted is in fact the one he posted himself. No references to original publications/documents in that post either.
What I did found though at http://www.iss.co.za/Pubs/Monographs/No53/CONTENT.HTML
makes the following abundantly clear:
“Impartiality and non-interference
A measure designed to deter members of the prosecuting authority from submitting to undue outside influence is a clause in the National Prosecuting Authority Act that obliges members to “serve impartially and exercise, carry out or perform their powers, duties and functions in good faith and without fear, favour or prejudice and subject only to the constitution and the law.”98
The act further stipulates that:
“subject to the constitution and this Act, no organ of state and no member or employee of an organ of state nor any other person shall improperly interfere with, hinder or obstruct the prosecuting authority or any member thereof in the exercise, carrying out or performance of its, his or her powers, duties and functions.”
Any person who contravenes this provision is guilty of an offence.”
“The code of conduct acknowledges the crucial role of prosecutors in the administration of criminal justice. It emphasises the essential need for prosecutions to be fair and effective and for prosecutors to act without fear, favour or prejudice. Moreover, it serves to inform the public of what is expected of prosecutors, and is aimed at ensuring public confidence in the integrity of the criminal justice process. “Above all the code requires all prosecutors to respect human dignity and human rights and to perform their professional duties with full recognition of the supremacy of the constitution and the rule of law.”157 The more salient features of the code of conduct include:158
* Prosecutors should respect, protect and uphold justice, human dignity and fundamental rights as entrenched in the constitution. They should also serve and protect the public interest, and strive to be consistent, independent and impartial.”
The above are of course 100% aligned with the constitution and any reasonable person’s sense of fairness and justice.
Wessel, I assume you were at law school before 1996? We now have a constitution. Section 35 states for example that even illegally obtained evidence can be used in a trial unless it would make a fair trail unlawful. We have a constitution now and that must guide the exercise of power by organs of state. That is also why Ad Ngalwana, writing in Sunday Tribune is wrong. This is not an admin law issue. It is about legality. A decision taken by an organ of state but not taken in terms of the guiding legal rule is illegal and invalid. A court can declare iot so otherwise why have legal rules in and out of the constitution that organs of state are required to adhere to. What we need is a crash course for lawyers and politicians and heads of the NPA in the Rule of Law.
Bongs, you reflect my speculation at the time accurately. I am trying to understand why was Zuma not prosecuted with Shaik and then later prosecuted. I am not sure I understand the hypocrisy. I am merely reflecting the law as it was confirmed by the SCA less than three months ago. Why is this hypocrisy? Please explain in 250 words or less. Bonus marks if you do not use exclamation marks.
Pierre De Vos @ 10:02 am
Pierre – can I ask you a personal question ?
I have come to the conclusion form your politics that you probably supported the UDF. If so – was Bulelani Ngucka an associate, a personal friend or perhaps even a comrade ?
Ozoneblue. When I started teaching at UWC, Ngcuka was at the Community Law Centre there. But I was a junior and only met him on two occasions before he went to Parliament. I have never met his wife. My view is informed by a world view about, constitutional democracy, what the constitution and the law says and ultimately about substantive fairness. I think the kind of formal fairness – like formal equality – is a very unwise and UNFAIR principle. I believe one should always ask, in SUBSTANCE, what is fair. The Constitution contains many provisions (including section 9 and 35) that seems to hold the same view of fairness. This is very different from the kind of fairness adhered to by the US supreme court where tainted prosecutions (and tainted evidence) will ALWAYS be thrown out and where the court says affirmative action is discrimination and unfair.
Pierre De Vos // Apr 14, 2009 at 10:02 am
1. You did not state that you were speculating.
2. Even if you were speculating it was because there was no evidence then of political conspiracy. Now there is. Your initial speculation should now be upgraded to ‘fact’.
3. If your speculation / fact is anything to go by, for political reasons there was no intention to prosecute and convict Zuma + “It is clear that where a person is charged but the purpose of charging a person was never to secure a conviction the case could not proceed.” + “I would contend this scenario would not allow the NPA legally to drop the charges.” = hypocrisy
In order to get my bonus points I resisted the temptation of using exclamation marks and I did not exceed 250 words.
Its funny that the NPA was right and acting under no political pressure when it decided to charge Zuma but now bowing under political pressure when they decide to drop the charges.
You amase me as a person who claims to know the constitution. Why cant you do what you have been advising the ANC to do all these years to not challenge decisions of the NPA and the courts?
Mbusi @ 12:58 pm
My thoughts exactly. Just a few posts ago the NPA was totally “independent” and acted beyond any reproach. Those of use who pointed at the compilation of the Browse-Mole report as clear-cut evidence of a political conspiracy were mocked as “conspiracy theorists”.
“And those who suffer from selective amnesia when it comes to the misdeeds of the Scorpions — and there are many, especially when it concerns the polygamist, misogynist and financially inept Zuma — let me refresh your memories. In 2006 news of the top secret Special Browse Mole report (concerning an alleged plot by Zuma, his leftist allies and former Umkhonto we Sizwe leaders, in cahoots with some African leaders, to overthrow Mbeki) was leaked to the media. After denials from security agencies including the NPA, the Scorpions via McCarthy eventually admitted to Parliament’s joint standing committee on intelligence (JSCI) that the Browse Mole report was the work of senior Scorpions investigator Ivor Powell. Moreover, McCarthy also had to concede that the report was compiled illegally and that its chief content was concerned with Zuma, a suspect in its corruption case. The JSCI suggested that the perceived intent behind the information that fuelled the Browse Mole Report was to destabilise the country. The JSCI contended that the reports’ findings were provocative and contained baseless allegations.”
http://www.businessday.co.za/articles/topstories.aspx?ID=BD4A979792
One of a few excellent articles on this topic Business Day nogal.
What I fail to understand is how the rest of the media and even this blog is steering clear from a very important question:
Why was Leonard McCarty still consulting with Bulelani Ngcuka in the year of 2007 ?
Mbusi // Apr 14, 2009 at 12:58 pm
ozoneblue // Apr 14, 2009 at 2:08 pm
“Those of use who pointed at the compilation of the Browse-Mole report as clear-cut evidence of a political conspiracy were mocked as “conspiracy theorists”.
Just a question before I answer yours……..since the NIA were investigating and “spying” on the events that lead to the browse mole report why didnt they say anything earlier? infact why didnt they take over the investigation as it is a well known fact the ANC gets its funding from the likes of african dictators so its not hard to believe that the Browse mole report was actually correct after all Zuma did topple Mbeki didnt he? ANC got crap loads of $$$$$$$$ from foreign dictators
so really who is actually at fault here the NPA or the NIA not doing what they are mandated to do?
Now for your question
Why was Leonard McCarty still consulting with Bulelani Ngcuka in the year of 2007 ?
well since you have already hung and quartered them in public which you have accused us of doing to Zuma……..the answer is simple, given the fact that both men and you and everyother citizen apart from the NIA and Zuma’s lawyers dont have the full transcripts and even the NPA didnt have the full transcripts it is a question im afriad will have to wait when they go to court i for one would also like to know if that is the case.
Now given the facts:
1) NIA has full scripts of audio tapes
2) Zuma has scripts of audio tapes
whats funny?
1) NPA isnt given full scripts just sections of audio which any fool can manipulate
2) NPA refuses to give full scripts to both men
Whats perverted?
)
1) Mpshe seems to have plagarised a Hong Kong Judge
1)Your trial by media based on thin air
2) Zuma “private citizen” can get hands on state property esp intelligence ( which by the way you still cant answer me – and im being kind enough to answer your questions
so it would appear you and your band of zimbabwe cloes would rather prefer trial by intelligence & media than by the courts
one last thing Ozoneblue
since you also seem to suffer from selective amnesia
what was the total value of drugs that the scorpians took off the streets?
oh and what was there convection rates by the way?
so do you just support stupidity or just criminality?
brain-dead troll @ 4:00 pm
“infact why didnt they take over the investigation as it is a well known fact the ANC gets its funding from the likes of african dictators”
Just because it is such a “well known fact” it would be illogical and a wanton waste of tax payer’s money to invest time and resources on gathering intelligence to prove what every second brain-dead troll already knows?
Bongs // Apr 14, 2009 at 9:14 am
Pierre De Vos // Apr 14, 2009 at 10:02 am
Bongs // Apr 14, 2009 at 11:35 am
Prof, please mark my script and then answer my question before you tackle you fellow heavyweights like Advocate Ngalwana.
Bongs, I think if you read my previous posts you will see I made it quite clear that I was postulating a theory on why Ngcuka first refused to prosecute and then Pikoli prosecuted. There is of course no difinitive proof of a conspiracy against Zuma – never was and still is not. There are snippets of tapes not tested in court. They might be admissable or might not be admissable in a court and they might or might not show a conspiracy to charge Zuma PURELY for political reasons. If this can be proven in court, the decision to prosecute would be illegal and section 179(5)(a) would not come into play. If there was a conspiracy and there were intereference with the NPA a crime was committed. Surely the NPA, Ngcuka and McCarthy should also be entitled to be assumed innocent until proven guilty? Or does this only apply to Mr Zuma?
But the fundamental issue for me is this: the NPA Act criminalises interference and if there was, those who interfered must be prosecuted – the Rule of Law and all that. But as I said before, I take my insight from the Constitution which insists on SUBSTANTIVE – as opposed to procedural – fairness, both in criminal procedure matters and in matters of discrimination, say. The question will always be: can Mr Zuma get a fair trial before an impartial judge. This is for a court to decide, not the NPA. Depending on the nature of the interference (was evidence fabricated, people set up etc) it might lead to a succesful application for permanent stay. With what we know now I doubt if it would though because unlike the US we do not follow a formalistic criminal procedure process.
Prof, thanks for taking sometime to mark my script – what about my bonus points?
Let us consider the permanent stay application – do you think that, after the exposure of political conspiracy, NPA could still succesfully resist that application? If Mpshe were to be brave enough to proceed with it, what was he supposed to do with affidavits of McCarthy and Ngcuka which rubbished Zuma’s allegations of political conspiracy?Could he ask the court to strike out those denials or simply admitt that there was political conspiracy?
My take is that over and above millions of rands that have been wasted already another R500 000 was going to be wasted with that application.
Bongs // Apr 15, 2009 at 1:24 pm
“do you think that, after the exposure of political conspiracy, NPA could still succesfully resist that application?”
Absolutly with out a shadow of a doubt, the actualy evidence against Zuma still holds water and is untainted ……..if Zuma played that snip bit in order to win a permanent stay of prosecution, the high court would laugh at him, this is not an exposure of political conspiracy, you of all people being an officer of the court should know this.
“If Mpshe were to be brave enough to proceed with it, what was he supposed to do with affidavits of McCarthy and Ngcuka which rubbished Zuma’s allegations of political conspiracy?”
well that would be a trial with in a trial, Mpshe would use that as evidence to back up the claims that Zuma is taking a chance the NPA was not given the full transcripts nore were McCarthy and Ngcuka, and there rights infringed by Zuma. This would be a seperate matter causing more delays to actually find out if Zuma is guilty of bribery
“Could he ask the court to strike out those denials or simply admitt that there was political conspiracy?”
No what would happen is for those alligations to be tested in court involving the NIA and how Hulley got hold of these tapes with proof and how he passed them on to Zuma.
Bongs media and the like can find out who leaked the tapes, media can find out what was said on the tapes why cant media or why hasnt the name of the judge who authorised the phone tappings and for what purpose been released yet?
and further more for permanent stay of prosecution would be for Zuma to prove he wont get a fair trial zuma not getting a fair trial is a load of crap, R100M on Zuma’s defence and he cant get a free and fair trial?………what utter BS and now a 2 second audio clip proves a conspiracy , com on man…