Gwede Mantashe is a man who knows how to take a gap in order to divert attention from very awkward and unpalatable truths. So it must have come as a godsend when he read an interview with the acting head of the NPA, Mokotedi Mpshe, in last Sunday’s City Press. In the interview, Mpshe is quoted as saying that the NPA had gone through a very rough patch.
The roughness came as a result of criticism, especially towards the NPA for having done this and not having done that. The weight of the roughness came in that this trial (Jacob Zuma’s corruption trial) was a political trial and was difficult for the NPA to handle. Every step that we took, every move that we made had to be analysed or a particular interpretation given to it. But the criticism has – I don’t want to say stopped – but it has scaled down.
Mantashe immediately pounced and said these statements:
clearly confirm once again that the NPA has cast aside all pretence of professionalism or political neutrality – it has come out in the open and has effectively admitted that it is pursuing a political vendetta against President Zuma. This supports the ANC’s longheld view that President Zuma was subjected to political persecution and that the NPA was used as a willing instrument in the violation of President Zuma’s rights.
Now, while Mpshe’s remarks could have been phrased more elegantly, and while it might have been politically unwise to even mention the Zuma case, it is clear from the context of his remarks that he meant that Mr Zuma’s trial had a political dimension and that the NPA was put under severe pressure because the prosecution clearly had political ramifications and was perceived by some as a political trial. The NPA has now also issued a clarifying statement confirming this.
This is not controversial at all – despite what Mantashe seems to suggest. The statement by Mpshe ironically, merely confirms what we all know, namely that the ANC has politicised this trial for its own short-term political advantage.
It is obvious that Mpshe would never have intended to say that the prosecution of Zuma was politically motivated. No one could be that stupid. Not even Mpshe. It is also very clear that Mantashe knows this very well. Why then did he pounce on the statement like this? Maybe because the Nicholson judgment is being appealed and the chances of a successful appeal looks rather good, so Mantashe decided that it was time to resume the campaign to discredit the NPA and the judiciary to ensure that a judgment against Zuma causes the least political damage.
So, I would not be surprised if Mantashe or others in the ANC again started attacking the judges sitting in the SCA appeal. After all, if the leader of one’s political party is somebody whose friend is serving a 15 year jail sentence for bribing and corrupting your leader and your leader has done everything possible to prevent himself from facing charges of bribery and corruption, then one would be wise to try and avert attention from that rather unpalatable fact by attacking the very institutions tasked by our constitution to deliver justice.
I am supported in this view by the criticism leveled against Mpshe for saying that he thought that the Nicholson judgment – now being appealed by the very organisation that Mpshe heads!- was wrongly decided. Once again the attack is so over the top that I smell a rat, as Mantashe fulminated:
Even more disturbing Mpshe has shown his utter contempt and disrespect for the rule of law by proclaiming that he would continue to hold that judge Nicholson is “wrong” regardless of the outcome of the NPA’s pending appeal…. Mpshe’s statement is ample evidence that he and the NPA have very little regard for the rule of law and for the rulings of our judiciary. Despite the admonition of Judge Nicholson, Mpse has committed a grave violation of his professional and legal duty as a prosecutor by allowing his judgment on the Zuma matter to be swayed by extraneous political considerations. He has admitted that much in his interview with City Press.
Am I the only one to find this statement so bizarrely over the top that I cannot but wonder whether it was not made with an ulterior motive? Why is it wrong for the NPA boss to say that according to him a judgment that his organisation is currently appealing was wrongly decided? How does this undermine the Rule of Law? How can this statement be deemed to constitute a grave violation of Mpshe’s professional and legal duty? Maybe Mantashe can explain to us what he means, but I am at a loss.
There is nothing wrong with criticising a judgment and saying that the judgment was wrongly decided. If one could never criticise a judgment or say that it was wrongly decided then legal academics would have nothing to talk about or write about. So Mantashe is talking through his nose (or maybe it is through his backside).
Once again, I suspect ulterior motives. Mantashe is now trying to undermine the NPA to try and ensure that the very serious and credible charges against the leader of the ANC is quashed. This he has to do because ordinary people will continue to ask why the ANC is persisting with Jacob Zuma as their Presidential candidate despite the fact that he is possibly facing such serious charges of corruption and bribery. They ANC would want to talk about everything except about these charges, because talking about the charges will remind voters that Zuma is not fit for public office because he has a HUGE ethical question mark hanging over his head.
In the weeks and months to come the ANC will do everything they can – including undermining our constitutional institutions such as the NPA and the judiciary – to try and avert attention from this unpalatable fact. We should not let them get away with this.
Mantashe, Duarte – buffoons and worthy comrades of Mr Malema. You are spot on in your analysis and from what i hear, many of their ANC colleagues in parliament cringe at the manure that the guys in Luthuli sprout. I can’t believe that the majority of the electorate, gullible as they may be, fall for it, but then again…
It does stagger believe why the ANC persists with Zuma as leader. Surely there must be someone powerful behind the scenes that realises that he is causing his party and his country huge embarrassment.
I am no fan of the ANC (and certainly not the DA either) but looking at these ANC shenanigans through the looking glass of the British media, it does look as if SA politics has descended into a farce.
Good post Prof. It has to a certain extent already been debated under the previous post below. But here I also have to agree with you. In fact, Mantashe’s statement about Mpshe’s perceived disrespect for the rule of law, clearly shows that he was from the outset aware of the true meaning of Mpshe’s remarks about the Zuma trial being politically tainted so that it was difficult for the NPA to continue with the prosecution. Why would the NPA at all continue appealing the Nicholson judgment and, even say that should the appeal be decided against it, it would still feel that the Nnicholson judgment is wrong – if it admits that the decision to institute prosecution is in fact a political one as alleged by the ANC (or rather, Zuma camp)? This is again a clear case of some (very senior) ANC members jumping at every opportunity to score political points under the uninformed electorate through misinformation.
Spot ON, Pierre! Spot ON!
As George Gildenhuys points out, if you are an outside observer of South African politics, you could not possibly take South Africans seriously. The matter goes beyond the corruption trial; Zuma has yet to explain why he did not disclose his financial receipts from Sheik to Parliament. He has not even apologized, yet he is still being presented as a candidate for the state presidency?!!! South Africans will have to live in the shame that America had to for the past decade. It’s a travesty!
i think the next few months are going to be interesting to see in South African politics.
Maybe the reasons ANC has put Mr Zuma forward as its leader, it is because his has not expose those in the background who are also involved in the arms deal.
I actually read the article/interview in the City Press last Sunday. Quite frankly, I think all the noise smacks of desperation. Only a person who is desperate to find anything, anything at all, that would support his position would attack Mpshe like the ANC leaders have done in the last few days. These people cannot honestly expect the NPA to appeal Nicholson’s judgment and still have Mpshe hailing the very same judgment as a correct judgment!!
Anyway, I see a lot of these desperate “fights” these days. I listened to the disgruntled Carl Niehaus (disgruntled by being “sidelined” by Mbeki) on Morning Live today and his justification for the threatened / imminent / pending application against COPE for the use of the name just confirmed what I’ve always complained about, my beloved ANC (still carying my membership card even though I get embarassed for keeping it every day) keeps getting itself involved in some very petty politics. These useless fights should really be reserved for those young leaders in COSAS who still need to perfect the skill of political engagement. Surely, there are better things that need the attention of our senior leaders!
You bloody hypocrites!!! Dont make me mad!!! Since when? Since bloody when do you care about properly contexualising what is captured in the media? Is it not you lot who are always making noise about ill-thought media statements frm Vavi, Malema, Blade etc despite whatever attempts they make to clarify themselves? Mokotedi Mpshe is a lawyer, he should know better than not to discuss matters which are subjudicé, not to mention making such a stupid utterence when he knows very well the complex polito-legal dynamics of the Zuma case. He is the one who was talking thru his, back-bloody-side, and everybody who does not see anything wrong with his stupid interview…..By the way, Prof who died and made you Tlali Tlali?
Could you guys just check “Matthews Phosa full text to the Public Protector on NPA v J.G Zuma”…Well, Is he also arguing through his, …shall we say, back side or nose, Prof (Our beloved “Law Expert”)?….I ll be waiting for your comprehensive “legal” analysis of Phosa’s argument rather than your continous (constitutionally-in-order) insults, yet 4eva baseless, to our leaders!!
It becomes clearer by the day that the defence of our hard-won democracy starts with protecting the judiciary from interference. As usual, those in power go after the judiciary first to assert their dominance. What can ordinary citizens do to support the rule of law, the judiciary, and the NPA?
Ultimately, the South African public pays the price for the deterioration of the ANC that allowed poor leadership to rise to the top.
As I will illustrate here below, Phosa is being very disingenuous. My comments are in square brackets.
Phosa writes: Mpshe admitted as follows: ‘.this trial ( Jacob Zuma’s corruption trial) was a political trial and was difficult for the NPA to handle’.”
[Phosa states only part of the sentence. Why does he not write the whole sentence, let alone the paragraph, so that the reader can discern the actual meaning and intent of that part of the dialogue? Phosa’s intentions here are dishonorable.]
Phosa writes: It is downright unfair to state that President Zuma remains an “accused” even though a Court has dismissed the criminal charges against him.
[Phosa knows very well that no charges against Zuma were dismissed as there was no trial yet. When the two judges Msimang & Nicholson threw out the case, they left the door open for the NPA to recharge Zuma when the NPA was ready to do so and to do so properly. It is amazing how selective the ANC gets with regards to Nicholson’s judgement.]
Phosa writes: This means that Zuma, regardless of his standing in the community, should be treated no better and no worse than similarly situated accused persons.
[Phosa admits that Zuma should be considered an accused person.]
Phosa writes: It is also noteworthy that during its investigations, the public protector experienced stone-wall tactics by the NPA and other difficulties ranging from prevarications, evasiveness and outright refusal to cooperate with the public protector.
[Anyone can see what Phosa’s intentions are. I hope the Public Protector see through this transparent attempt to influence him to base the judgement on previous actions by the NPA. How devious.]
Phosa writes: Clear evidence will establish that the NPA has used the court’s process improperly used for official public smear of President Zuma while at the same time repeatedly frustrating his right of access to court and denying him a forum in which to vindicate his rights.
[The whole world knows that it is Zuma, his appeals and challenges to courts-of-law in South Africa and overseas to block certain evidence from being admitted in his trial that is denying him a forum in which to vindicate his rights. The whole world, except those who are afraid, is waiting for Zuma’s day in court. Phosa knows this very well. It is Zuma, his lawyers and some supporters that are seeking a political settlement and a delay so that Zuma can become President of South Africa. Who is Phosa trying to deceive?]
[If I were Phosa I would not even drag Ngcuka into all this because not only is it not relevant; but we all know that Ngcuka’s action were beneficial to Zuma. As Judge Nicholson said that bribery is a bilateral offence, Zuma should have been charged with Shaik. A guilty Shaik imply a guilty Zuma according to the bilateral nature of the bribery offence.]
One can only conclude that these desperate yet pathetic antics by the ANC and at a time like this are an attempt at getting sympathy for Zuma as the date of the appeal nears.
The ANC is getting into a bit of a pinch – they can’t keep on attacking the judiciary after they praised the Nicholson judgement – the hipocracy of praising favourable judgements and attacking unfavourable ones is so obvious it will make even the most dim witted die-hard supporter shudder. All that is left to attack now is the NPA, but they are not the arbiter of this shambles. The ANC are in a tight spot, and Zuma will have to stand down, unless of course the new ANC leadership is happy to flush the ANC and the country down the toilet on his behalf – I can’t believe this.
Spuy, I have read Phosa’s complaint. It is obviously part of a smear campaign against Mpshe and NPA to detract attention from the fact that Zuma might lose his case and face new charges. This is an all out attack on the NPA, based on really flimsy evidence. It is very dangerous that the ANC is undermining the NPA like this to save the bacon of their buffoonish leader. Of course the Public Protector was an ANC member of Parliament so he might well find in Zuma’s favour. That would not make the case that Phosa is arguing less laughable. It would just undermine the credibility of the Public Protector even further.
Tony – Yes, and to think that Mathews Phosa was once regarded as one of the top lawyers in this country. Now this nonsense!! Since when does the Public Protector have jurisdiction to interfere in NPA propsecutions? Hoo boy!? What do these guys smoke?
Spuy – On your ‘hypocrites’ remark: Thing is that Malema, Vavi, Blade, etc. made such a big mess each time they said something controversial, that it couldn’t ever have been reconciled with the rest of their statements (i.o.w. context never worked in their favour), and their attempts later to ‘explain’ their remarks were more than poor.
“We should not let them get away with it”, Who are “we” Prof? (Anonymouse, Mzo, Gildenhuys, Vuyo, Tony) Who are “them”, (Communists?) Remember the “rooi gevaar” scare to white people during apartheid? Bad tactics heyyyy?
Are you not taking us back to apartheid era with these utterances Prof, “Us” and “Them” ? I am really dissapointed?
I hold a view that says the current adult generation in SA will never get it right when it comes to politics (gender, race, you name them). We (all of us) have a baggage from the past and it will be difficult to get rid of it, me included. It took the Americans decades to accept that a black man is human being capable of running the US.
Likewise, we (all SA citizens) will continue to treat each other like this with suspecion for few more decades before it comes to normal. We are all citizens of the country and let us stop “Us and Them” politics, Prof.
I hope Tony in Virginia (US or FS?) will read this piece.
Teboho Seleke – As long as you choose to read (and hear) “we” and “them” as racial or gender distinctions, you will never have conquered apartheid. However, when you start reading (and hearing) those terms in the context in which they are used, you will soon find that the people using such terms have long since moved on and put apartheid behind them, trying to further honest debate. In this case, lawyers and academics (and those who take an interest in the law and constitutional matters – hence their participation in this blog) are usually the “we”, while the “they” usually refer to the people associated with the person (party, whatever) that is being criticized. Sometimes those people are black, but sometimes they are white, sometimes they are male, sometimes they are female, sometimes heterosexual, sometimes gay. But that is not the criterion for the use of the terms “we” and “they”‘, the true criterion, if you proeprly read (listen), is whether the person submitting an argument associates him/herself with the other side’s arguments – that is honest debate. So stop being so “fyngevoelig” and participate in the debates here – or don’t read this blog.
Sorry – “you will soon find that the people using such terms have long since moved on and put apartheid behind them, trying to further honest debate”
must read – “you will soon find that most of the people using such terms in this blog have long since moved on and put apartheid behind them, trying to further honest debate”
Teboho Seleke, you are wasting your energy-these guys, including De Vos, are infact part of the broader conspiracy against Zuma. I mean, these conspirators operate from GUILTY TILL PROVEN INNOCENT BY THEM(…this cabal) and maybe a court of law. You see, as far as they are concerned, they are the only ones who can interpret the law….They are the only ones who can attack the judiciary (Attack of Nicholson, and now Mushwana even b4 he starts investigating)…..In fact, these are the people, (i.e Prof and them-from whichever Virginia and so forth, though it must be the Vrystaat one!), who are “prepared to take up and kill” to protect anyone who hates Zuma! Ek se vir jou Teboho.
Prof, you are undermining the office of the Public Protector. How do you know that Mushwana will rule in favour of Phosa?
Anonymouse No, I dont think they have moved on. You seem to be one of them. I am one one of them, hence I raised the issue. I think you are in denial and I cannot push you to move on..
Spuyt et Teboho – Mushwana has no jurisdiction in this matter. If he had, what roles do the NPA, High Court, SCA, and CC have to play in the criminal justice system of this country? Why waste taxpayers money on frivolous and vexatios court applications in recent years brought by the Zuma camp (“THEY” in this line of argument), if they can, without much costs, go to the Public Defender to have the matter sorted out. In other words, if the Public Defender can prescribe to the NPA and the Judiciary what to do and what not to do, what role is there for the judiciary? And, if the Public Defender is a political roleplayer (member of the ANC), what chance does the judiciary have to remain independent.
Too many people have invested in Jacob Zuma. It is hard to see much light from the heat generated about him by Gwede and Phosa.
Read Kader Asmals report on the Chapter 9 institutions for an insight into what a mess Mushwana has made of the public protectors office. Phosa’s complaint is just plain intimidation. Mpshe’s utterances pale into insignificance compared to the regular utterances of the Zumbie brigade.
Anonymouse: Your last comment proves to me that you are still in denial. Public Protector’s office (PPO) is one of the Chapter Nine institutions. It is an institution aimed at protecting our young democracy. IIf Zuma’s rights are violated, it is up to institutions like fPPO to comment, the same way the HR would do. If we, and not YOU et al, do not respect the decisions from it, then our, democracy is doomed and we only have ourselves to blame.
Guys!
We need to concede as legal professionals, that Mphse was wrong in making such un-informed utterances against Judge Nicholson. Him to say despite the ruling by the SCA, he would still maintain that the was wrong, is a clear disregard of the rule of law.
His remarks are indicative of the political agenda inherent in the decision to charge JZ.. There was never a political pressure on him not to recharge him, hence he was recharged and same decision found to be unprocedural.
Samaita, ur suggestion about too much investment on JZ by some people is devoid of any substance.
Mel, you clearly did not read the article but you are simply falling into the trap of listening to the likes of Mantashe. Mpshe “despite the ruling by the SCA, he would still maintain that the was wrong, is a clear disregard of the rule of law”. Go and read the article before you make unfounded statements.
Teboho – Go read s 182(3) of the Constitution. Or, for sake of convenience, it says:
“The Public Protector may not investigate court decisions.”
Ergo – when a matter is a matter before the courts (which is a Chapter 8 institution – one better than the office of the Public Protector, which is a Chapter 9 institution) = the Public Protector has no jurisdiction to interefere! In any event, all the Public Protector can do in appropriate cases [iz s 182(1)] is to INVESTIGATE conduct; REPORT on that conduct; and, TO TAKE APPROPRIATE REMEDIAL ACTION. He has no teeth, and when the NPA and the judiciary is involved, he has no jurisdiction to tell either the NPA or the courts what to do. Remember, the judicial authority of the Republic is vested in the courts [s 165(1)], and not in the Public Protector. Satisfied?
Anyway – all of the above has nothing to do with “denial”.
“WE” – 1; YOU – 0. Laduuumah!!
Sorry – YOU should be in inverted commas – “YOU”
I think we are missing an important point. It is one thing to accept and abide by the decision of a court or judge and quite another to accept but disagree with a decision of the court.
I do not think that Mpshe meant that he would ignore or disregard the decision of the court. He is within his rights to maintain that the court is wrong even after the final determination. Courts are not infallible. We are never as lawyers invited to accept the infallibility of judges. What we do accept is that the finality of final courts is really their “infallibility”. The highest courts are “infallible” because they are final and not final because they are “infallible.”
Mel: You just made my day
Mzo: You did not read the article. Remember 14 years statement made by Mpshe? Come on Mzo, Msphe is not a philosopher who would wanted to say something different from he said. If you did not undersand he said if he were to be asked the same question after 14 years, he will still say the judge was wrong.
Pressumably the judgment of the SCA will be out in two months time, not 14yrs, will he still hold the same position if the judgment goes against him? Of course he will be happy if the court agrees with him.
Samaita, perfectly said. I will abide by the decision of the Constitutional Court in the Jordan case where it found that the criminalisation of sex workers (but not their clients) are not discriminatory. But I think this decision was wrong and have said so and will continue saying so as that is my job as an academic. Many academics have also criticised this judgment and still maintain it was wrongly decided. There is absolutely nothing, nada, boggerol, wrong with that. If Mantashe and Phosa cannot see the difference between these two scenarios they are very, very stupid indeed. But they are not stupid, they are just trying to intimidate the head of the NPA to try him to drop charges against Zuma. In terms of the NPA Act this is a criminal offense carrying a jail term of 10 years. If I was Mpshe I would arrest the buggers and charge them, but maybe I am just in a bit of a cowboy mood today…..
I fear the Public Protector will investigate Mpshe, although he should not do so because constitutionally the NPA is independent and no one may interfere with its work and the PP is not given the power to do so. The PP has already (wrongly) interfered with the NPA when it investigated Bulelani Ncguka and found that he had infringed on Zuma’s right to dignity (once again, completely misunderstanding the dignity jurisprudence of the Constitutional court in the process). The PP is not a judicial body. It is not a court and cannot make binding decisions, merely give advice. In high profile cases it has often shirked its responsibility for political reasons – i.e. Oilgate. The ANC runs to the PP because the PP is an ex ANC member of Parliament who is not prone to independent thinking.
REINSTITUTING OVERSEAS VOTING RIGHTS
Dear Friends and Supporters,
We have put the machinery in motion to fight for the voting rights of all South Africans living and traveling abroad during the 2009 General Election. Additional good news is that the South African Youth League Abroad will be doing a protest march in London on 6 December for South African voting rights and another one in Johannesburg during January.
Our legal representatives have instructed a Senior Counsel experienced in political matters to give us an opinion on the chances of overturning The Electoral Laws Amendment Act passed through Parliament just before the 2004 election.
This Act has robbed all South Africans working, studying or travelling abroad (expats) from a chance of voting during the last election. This is unfair and clearly a tactic by the government to block potential votes against them. The majority of South Africans Expats will certainly not vote for this government.
A legal opinion on this matter has never been written and depending on the findings of the SC we could challenge the Government in the Constitutional Court. A ruling in our favor could force the government to postpone the elections to allow reasonable time for voter registration overseas.
You can show your support by signing the petition for the Expat vote at http://www.mypetition.co.za which is growing fast. An estimated 2 million South African are either working, studying or travelling on business or vacation or taking part in sport events outside the country at any given time.
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