The application by Mr Jacob Zuma to declare unconstitutional the bringing of charges against him by Vusi Pikoli and to have this decision set aside is dead in the water. After wading through the Zuma affidavit this morning it is clear to me that this application is yet another stalling tactic by Mr Zuma and his lawyers to ensure he never gets his day in court.
As some readers have pointed out in the comments section of this Blog, the application is based on section 179(5)(d) and section 22(2) of the National Prosecuting Authority Act which states that the National Director “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 accused person; the complainant; and any other person or party whom the National Director considers to be relevant”.
Zuma’s lawyers argue that when charges were instituted against Zuma, he should have been afforded a hearing because this was a “review” of the previous decision by Bulelani Ngcuka not to charge him. But this is not the case because the “review” spoken about in section 179(5) of the Constitution is – as others have pointed out – a review of a decision by one of the provincial Directors of Public Prosecution.
This is very clear if one reads section 195 holistically and in context. This section was included in the Constitution because of concerns by the ANC about the powers of provincial Attorney Generals in the previous prosecutorial dispensation. These provincial Attorney Generals had a final say on who to charge and who not to charge in their jurisdictions and the ANC was not happy with the way some of these AG’s execercised their powers. They were seen as far too independent and far too reactionary.
That is why the ANC insisted (correctly, I think) on creating a National Prosecuting Authority with a National Director who could issue policy directives that would bind the provincial directors of public prosecution. This is also why the Constitution explicitly states that the National Director can intervene when these policy directives are not complied with. The ANC felt that the AG’s had far too much power and this was a way to nip their independence in the bud.
But what is intriguing about the latest application by Zuma is that it comes closest to pointing the finger at President Thabo Mbeki for orchestrating the prosecution of Zuma. Most of the application is about politics and not about law. It hints that Mbeki influenced the decision to prosecute Zuma because he and Pikoli went on a trip to Chile shortly before Zuma was fired. The application points out that Mr Zuma was only charged after he was fired as Deputy President, but that the President mentioned in his speech before Parliament when he fired Zuma that he was sure Mr Zuma will get his day in court.
This argument might have some political traction, but it will not be of any legal use to Zuma.
Mr Zuma’s supporters could point out that President Mbeki had just re-appointed Mr Jackie Selebi as police commissioner for another year despite the fact that he is being charged with corruption. Mbeki’s spokesperson said that this was done because due process of law must be respected. This is of course a rubbish argument. Mr Selebi’s contract had come to an end and there was no legal requirement to reappoint him. The decision to do so was a political one – born out of Mbeki’s stubbornness and his belief that he and he alone knows best.
Mr Zuma’s supporters would of course also point out that the same consideration for the due process of law was not given to Zuma who was fired even before he was charged with any crime. It does show up a spectacular double standard on the part of President Mbeki.
The difference is of course that President Mbeki wanted to get rid of Zuma, while he has no intention of getting rid of Selebi, perhaps because they are old friends and perhaps because Selebi is not a political rival of Mbeki.
In retrospect it is clear that President Mbeki badly miscalculated in his political handling of the case against Zuma and that by firing Zuma he started the fightback campaign that has now culminated in the election of Zuma as ANC President. South Africans just love a victim and Zuma can play the victim better than almost anyone else. President Mbeki created Zuma’s Presidential bid by allowing Zuma to paint himself as the victim of a political conspiracy.
If Mbeki did indeed have a hand in the decision, first not to prosecute Zuma and then, second – when Zuma did not want to go quietly – to prosecute him, it would have been highly irregular. There is of course no actual proof of this although it is an article of faith for most Zumaists. Ironically, if this was indeed the case, Mbeki’s big tactical mistake was that he was not ruthless enough and did not put pressure on the NPA to prosecute Zuma along with Shaik – which really they had a legal obligation to do.
Ironically, by treating Zuma with kid gloves and by deciding not to prosecute him merely because he was a struggle icon, Ngcuka (or was it Mbeki?) created the “victim” of the “conspiracy”. If Mr Zuma had not been given special treatment and if he was prosecuted with Shaik, Mr Mbeki would probably still be leader of the ANC today.
So I am not very sympathetic with those who argue Mr Zuma is the victim of a political conspiracy. If there was indeed a political conspiracy it helped him to get elected President of the ANC. Without this so called conspiracy, Zuma would never have been so popular and would never have been elected President of the ANC.
I think even Bafana Bafana is Mbeki’s fault.
But surely JZ’s concern is that he must not be the next recipient of a 15 year jail sentence, so really whether he did or did not win the Leadership election at Polokwane is not the point. That is the issue that T seems to be having a problem with. So far JZ’s rise has all been down to people buying the BS that Mbeki is a political swine who, together with Kasrils, Manduna, the Media and the Tokoloshe, have conspired to hurt poor old non-corrupt JZ, and people who don’t really need to concern themselves with acknowledging that our Constitutional Court Justices are actually very fair minded people – some even have struggle credentials too! – and that the NPP is so adamant that they will prosecute any wrong doing they even stand up against the Minister and get suspended!
Can this Review Application be fast tracked considering that it is bogus?
Oh, and I was just thinking how amusing it is that Hulley claimed one of his motives for writing to the Con Court was to ask when JZ could receive the Judgement, considering their entire case has been built on how to sssslllllllooooooooowwwwwww the case down! I hope the Court says TOMORROW!
Pierre, the point Feinstein makes is that if the trial of Zuma did go ahead with Shaiks, Mbeki and the ANC was likely to be damaged by the revelations.
My bet is Mbeki thought that the info that came out of the trail would damage Zuma, and that he could sideline him from government.
When he lost in Polokwane he had not much left to loose, hence the prosecution proceeding.
Wessel,
That stupid.
Khosi, the meanest of intellects will have discerned by now that mbeki is your homeboy. The benchmark of his presidency will be silence on those matters that required his urgent attention.
Trevor, just give Msholozi a big brown paper bag filled with R20 notes (at the airport); Blade a rubbish bag full of R50′s; Vavi a bottomless credit card, let Malema have the Kebble estate left overs; in fact, give whatever it takes to get the entire new “revolutionary” NEC to go away so that grown ups can resume running the country in peace and quiet.
This must be the answer – the new “revolutionaries” get what they are after without all the schlepp, and it spares the rest of us the years of epic corruption, incompetence, disinterest, and most of all, the endless orwellian drivel about dark conspiracies, counter-revolutions, sinister third-forces, etc et f’ing cetera.
Peter, the use of the term ‘grown ups’ strikes a chord. When are we going to get leaders who can string together more than a dirge about machine guns, or discern between situations that require leadership vs. those that are simply wallpaper for the ‘masses’? The immature political leadership of the anc regime defies description. The selebi zuma debacles are the end result of the nursery squabbles of the anc.
Whether or not (or whenever) the Scorpions are disbanded, I hope that the NPA will not leave any stone unturned to prosecute both Jacob Zuma and Jackie Selebi with the full might of the criminal law; and, I hope they are both convicted – so that Thabo Mbeki, Jacob Zuma, the ANC, ANCYL, COSATU, SACP, and everyone else can see that the criminal law can operate independently without (or regardless) of political influence, and that no-one is elevated above the law. As soon as that perception is grasped, we will probably move forward as a Constitutional Democracy that can set an example for the whole of the international community. Then will we be able to generate prosperity for all.
Khosi, it’s no use to sigh and wail that even Bafana Bafana is Mbeki’s fault – the facts (not merely the allegations or presumptions) are heaped up against him: (1) He fires Jacob Zuma (because he is a political rival) even before a firm decision hgas been taken to prosecute him. (2) He suspends Pikoli, even though there is clearly no case against him (as we have seen at the Ginwala Commission thus far, no credible evidence has been led by the state against Pikoli – even the Hon Mbandla is not willing to put her money where her mouth is and testify). (3) He doesn’t suspend Jackie Selebi even though there is a strong case against him; and, only after Pikoli’s decision has been reviewed by other experts, does he take action – however, the action is to put Selebi on paid leave, and even to rennew his contract (for the taxpayer at a cost of more than R 1 Million) for another year. (4) Even after the whole world, including the AU and SADC (even SA on the Security Council) has condemned in the strongest of terms the violence in Zimbabwe, whith most states in the world (and Africa) feeling that a peaceful settlement in Zim is out of the question, he still wants us to believe that a ‘peaceful’ settlement of the problems in Zim is possible, and he bluntly refuses top cast a stone in the direction of Bob Mugabe (a struggle comrade – who is not a political rival). If all this does not boil down to nepotsim of the worst kind, then I don’t know what Nepotism is.
Inderdaad Khosi, as dit is hoe Tahbo Mbeki as leier wil wees, dan sal mens hom begin blameer vir as die kat kleintjies kry.
I think Thabo Mbeki deserves get a Nobel Peace prize.
Khosi, it would be an insult to the Alfred Nobel foundation to award TM the peace prize, which, according to Wikepedia, is awarded for “in the establishment or furtherance of peace congresses”. And, in any event, Nobel who invented and commercialized dynamite, and who owned the notorious Bofor armament business, was a fine one to award (via his last will and testament) a so-called ‘peace prize’. No, TM does not qualify, he himself ordered the planting of landmines that killed innocent members of the public (according to information made available at the TRC); he turned a blind eye and a deaf ear towards zenophobic violence; and I’m convinced that due to his failure to act in Zim, where peace is definitely not rife at the moment, will disqualify him from winning the Nobel Peace Prize.
Rat
Obviously in your colonial mind everything revolves around Zimbabwe. Do yourself a favour and read todays Mail and Guardian.
Khosi. Oh, but I have, nothing there that really vindicates TM, not even the article “Mbeki’s precient warning to Bob”. To the contrary, the other articles on Zim, which dominates the whole paper today, actually proves my case. E.g., “SA arms flow to Zimbabwe”, “Mugabe defiant as votiing starts in Zimbabwe”, etc. However, if you have just made the effort to read my above responses, you would see that I threw in Zim just for effect – the other arguments apply to the SA situation.
Rat,
The point is that he is not blind nor does he endorse what is happening in Zimbabwe. He is not that in awe of Mugabe’s leadership and he is not his private bitch, like many of you have suggested.
He has always said that the problem of Zimbabwe will be solved by Zimbabweans. I dare anyone to tell me of one peaceful country whose problems were solved by people outside of that country. There is a decades long conflict in the Middle East, American president after American president and Europeans have tried and failed to stop it. No one has ever told them how to go about their efforts at finding that peace. Why should this mediator be dictated to? I dare you, spurious Rat, to tell me who in this world has the ear of Robert Mugabe. And, please, indulge me on why that is still the case.
This vindicates Mbeki on Zimbabwe. Emmense depth of analysis and quite prophetic
What vindicates him?
As I have it, SA had for quite some time colaborated with Russia and China toi keep any discussion on Zim out of the Security Council, because, according to tyhe SA government (read Thabo Mbeki as head of state) the situation in Zim does not amount to an international (or regional) threat. (I have commented on this in earlier blogs on the subject below.) Today, … Hallelujah!! Someone seems to have talked sense into their heads because it was anounced on the 13h00 news on RSG that the Ssecurity Council has adopted an unanimous resolution against Zim (esp Mugabe) in this regard, and that talks about further sanctions and isolation of mugabe and his cronies has been scheduled for next week. This belated concession by SA does however for the very reason of belatedness does not vindicate TM on that issue.
Khosi, you “dare anyone to tell me of one peaceful country whose problems were solved by people outside of that country”. OK, how about Germany? World War II? Just look at Germany now.
And another thing: your gaaning aan about “colonial minds”. Africans (your ancestors) colonized what is now South Africa, around about 1000 years ago if I’m not mistaken. And that’s not all: aproximately 60,000 years ago, Africans colonized the entire rest of the world, exterminating the entire population of archaic humans that already lived there. Nowadays, of course, there’s no end to the moaning and finger-pointing at the descendants of those Africans for coming back and re-colonizing Africa – heheheh …
Clara,
Tell me about how people from outside helped Germany. I am ignorant of Germany having the same problem as Zim, Palestine, Iraq etc.
Rat,
You say,
‘ because it was anounced on the 13h00 news on RSG that the Ssecurity Council has adopted an unanimous resolution against Zim ‘
To my understanding, this meeting is happening in New York and that meeting should take hours. That would make the time of the news report 07h00 in New York. Do these guys meet that early. If so, I am impressed.
Khosi, by the way, if Mbeki felt that he would not be able to cope with the role of mediator (perhaps because he is too involved as Mugabe’s ‘personal bitch’ – you said it – and not impartial enough to be trusted by all the parties involved) he should have turned down the request/appointment.
As far as Germany is concerned, when Adolf Hitler started committing genocide and other crimes against humanity at great scale, and because there was no quintessential international organization like the UN at that stage, the international community was left with no choice but to declare war on Germany. Quite definitely, that war (and the Nuremberg and other trials of the Nazi criminals) helped Germany. Look at its economy today, and compare the value of the Ddeutchmark to the Rand.
The Security Council of the UN (not one or two states, or heads of state) is the only body with ‘legislative’ powers to take binding decisions on how governments or states should behave. That austere body was only instated after WW II, and everyone hoped that would lead to crimes agaainst humanity being acted against earlier than what was the case in nazi Germany. The veto power 9especially during the Cold War, but also today) however continues to pose a major problem for the effectiveness of the Security Council, and South Africa chairing it this year definitely does (did?) not help much. Until today, there has been much evidence about crimes against humanity being committed in Zim, and the SC, especially under SA’s leadership, continued to turn a blind eye and a deaf ear, not even wanting to discuss the matter of Zim on the SC’s agenda. Like I said earlier, by the grace of God, someone must have changed the SA emisary’s mind, because the SC today adopted a resolution recognizing the situation in Zim as a threat to international peace and security, against which the SC can act under Chapter VII of the UN Charter.
Khosi, Anonymouse et al.
Pierre’s post is on Zuma’s latest application. I would like to read more discussion of that topic. But perhaps no one else finds it interesting or pertinent to a blog called ‘Constitutionally Speaking’ and would rather have debates on Mbeki and Zimbabwe.
Rat,
Are you proposing that Zim be invaded? To whose benefit? Who should invade? Where should th base be? after the invasion, how long before Zimbabwe is as prosperous as Germany?
I am sure you have all the answers.
Rattus Magistratus: thanks for second-guessing me on my reply to our good buddy, Khosi, regarding Germany … he probably thinks because the Allied invasion didn’t help Adolf Hitler it didn’t benefit Germany. Hitler thought he was Germany, just like Mugabe imagines himself to be Zimbabwe. Hey, how did we get so way off-topic?
Clara,
We got here because you failed to answer a simple question. And I failed in guiding you.
Clara,
But I must say that I like the idea of ‘Rattus Magistratus’. Absolutely apt.
Khosi
Ad 1. Yes
Ad 2. The people of Zimbabwe’s
Ad 3. Combined force of states that put human rights first
Ad 4. South Africa would be the most suitable base
Ad. 5 With the right help, I think no longer than 5 years for Zim to be prosperous again (with an inflation rate below 10%) – but to suggest that any African country is capable of becoming a Super Power, ‘far out man!’
Martin – I agree, but sometimes the likes of blogs where both Mbeki and Zuma are involved tend to become side-tracked = Khosi’s first response to this blog.
Oh, much like Iraq. I see…. you are one wise rat.
PIERRE
Not to scare you but for your knowledge, you are slowly becoming famous on the friends of JZ site:
www DOT friendsofjz DOT co DOT za/viewmessage.asp
Read: 27/6/2008 4:15:53 PM Senzo
“There is a gentleman by the name of Professor Pierre de Vos (UWC) who is fast becoming a “star” by bashing JZ…”
Setumo was already singling him out for attention last week! It’s bizarre how frightened they are to hear a dissenting voice and how they try to get everyone to round on that person.
Mpho
I saw Setumo doing that, using all the appropriate lingo (vocabulary) he doesn’t use here. But then some of us aren’t comrades!
“One bullet on quisling” was another telling one by one commentator on that site. Quisling means traitor. That age old phenomenon of first rooting out the traitors, before moving on to the real enemy (often the real enemy doesn’t even feature, while people are too busy rooting out traitors).
I have such mixed emotions about these matters, it creates a lot of uncertainty. But I make a point of reading a little friendsofjz daily, just to get a feel for their heartbeat.
Congrats Pierre,
Just like Malala, Mthombothi, Makhanya, Du Preez etc before you…. you seem to have made your star shine on the back of talking down African leaders.
Look, please don’t take me as the last word on Traditionalism because I break the mould far more often than I conform to it, but turning on traitors is as unAfrican as can be. There are no traitors in the African community. We must listen to all voices, even those we don’t agree with because the African realises that we all need to live together in harmony. That is not achieved by scaring people or demonising them.
I am very sad that Zuma projects himself as a Traditionalist when he is not. He is just an overtly virile old man.
More food for thought for the JZ camp
http://www.news24.com/News24/South_Africa/Politics/0,,2-7-12_2349458,00.html
Thanks mouse. Haven’t picked up on that yet.
Khosi, your comment about “talking down” African leaders seems to me so indicative aboutw hat is wrong with our political discourse. It suggests that it is not acceptable to criticise an African leader – even when they say and do evil things – because it would be racist to do so. I say it would be racist NOT to do so because that would hold African leaders to a lesser standard as other leaders like Goerge W Bush and would suggest that Africans are incapable of governing in a principled and just way – something I refuse to accept. If something bad happens one should talk about it and not pretend it is not happening merely because the bad things were done by an African leader. This does not eman one should not be aware of the context of colonialism and deeply ingrained racism in society, but it does mean one should NEVER EVER excuse the inexcusable merely because of the colour of the skin of the person acting in a idiotic, dangerous or murderous fashion. Down that path lies self-loathing and racism.
Pierre and others – where can I access Johan Du Plooy’s answering affidavit? Please help!