“I apologise for what I said to you, but I am sorry that you appear to have been right. That is where the true tragedy lies.”

Accepted, and I understood where your arguments came from. Sorry for deviating from my normal avoidance of directed use of ad hominem. You are right though: “That is where the true tragedy lies.”

And contrary to Setumo, I believe they are a minority, but unfortunately it only takes a small group of people to do serious damage (ask Executive Outcomes).

I always say in conflict it is not the strongest who wins, but the one who is willing to go the furthest. (If I am only willing to go as far as a fist fight and you bring a gun…)

My main purpose for suggesting that thread was to ask “What is going to prevent violence from happening?” I did not provide any of the answers I had in mind beforehand though, since I wanted to hear what others had to say. I believe that the ANC has enough strong leaders who can start reigning in this tide if they see the need or believe in doing so and then handle it in a nice way (just getting rid of them will only strengthen their sense of persecution). But then they would need to take it seriously.

Don’t underestimate the intelligence of the masses or you’ll be in for a rude awakening.

“”While the leader was loudly welcomed by the crowd — packed into a small community centre — he received an unusually tough response as members demanded the government deal with the influx of foreigners.

A young man shouting from the back of the hall urged Zuma to ensure government kept out foreigners from neighbouring countries.

“You talk to (Zimbabwe President Robert) Mugabe, you talk to (Mozambique President Armando) Guebuza. Tell them to tell their people they must not harass us in our country. This is our country.”

He said foreigners in the country were “riding on the gravy train”.

“We are looking to make you our president (in 2009 elections) so beware. If you are a stumbling block, we are going to kick you away,” the man warned, as the crowd erupted with deafening support for the sentiments.” “

“This is what bothers me about many of the young guys who are revolutionaries looking for a cause. The intimidation, the unanswerable conspiracies and the vocabularies bordering on military propaganda.”

And to think I was trying to bring you to order for suggesting that our young men had a tendency to act in such a way! Then look at how they conduct themselves!

I apologise for what I said to you, but I am sorry that you appear to have been right. That is where the true tragedy lies.

(1) Firstly, I must agree with you Patrick – s 179(5) of the Constitution that Zuma relies on to argue that the recent decision to prosecute him amounts to a ‘review’ of the earlier decision not to prosecute (which, according to him is not valid because he has not had the chjance to make representations to the NDPP) is not applicable. This is so because there was no question of a decision of a Provincial DPP being reviwed when Pikoli decided to re-instate the prosecution. The case was subsequently struck off the roll by Msimang J in the NPD.

(2) The original decision not to prosecute JZ in August 2003 was the NDPP’s (then Ngcuka) decision [which accrues to him by virtue of s 179(2) read with s 179(1)(a) and s 179(5)(c)], and not that of a Provincial NDPP, which has been ‘reviewed’ by Ngcuka. He has merely intervened when the Head of the DSO (then Leonard McCarthy) was still contemplating whether to charge Shaik alone or whether Zuma had to be charged with him, and did not ‘review’ Leaonard McCathy’s decision to prosecute or not to prosecute.

(3) By the same token, Pikoli’s decision to later charge him again did not amount to a ‘review’ of the erstwhile NDPP’s decision not to prosecute at that stage. One must remember that Ngcuka’s reasons not to prosecute JZ were controversial to begin with, because in his own words, there was a prima facie case that would justify a prosecution of Zuma, but that he nevertheless decided not to prosecute him at that stage. Furthermore, he never ruled out a renewed prosecution of JZ. In Zuma’s own affidavit [para 38(k), this part of Ngcuka’s statement of 23 August is highlighted: “Ngcuka did thereafter in response to questions from the press, inform the press that if circumstances changed in the sense of more and better evidence against me becoming available, the decision not to prosecute me would be re-visited and re-considered. His public statement and press release (“D”) had however made it very clear that the investigation against me had been completed. The reason for its non-continuation is expressly stated in par 33 thereof.” Thus, when the Shaik case provided stronger evidence of a corrupt relationship between Shaik and Zuma that existed before Shaik was prosecuted, Ngcuka (if he was still the NDPP) would have been entitled by his own account to revisit his (and Leonard McCarthy’s joint) decision not to prosecute. The mere fact that he was later replaced by Pikoli (and Pikoli replaced by Mpshe) makes no difference to this. The fact that, after Zuma’s case had been struck off the roll by Msimang J also has no effect on this construction of what happened, and the fact that he is now charged again merely means that the Prosecution (the State represented by the NPA) is now ready to proceed with the prosecution, whereas, when the matter was still before Msimang J, it was not.

(4) A DPP’s (and a NDPP’s) decsion not to prosecute at a certain stage is not necessarily a final decision not to prosecute (where a certificate nolle prosequi is issued, which would enable a private prosecutor to proceed with the prosecution), but it may simply be a decision not to do so at that stage (due to a lack of evidence, policy considerations or just because it would be better to wait and see if a court accepts the NPA’s case against the other accused). Such a decision can of course be re-called and changed at any stage if stronger evidence comes to the fore or if policy considerations now justify a prosecution. That does not amount to a ‘review’ in the purview of s 179(5)(d) of the Constitution (s 22(2) of the NPA Act 32 of 1998) as alleged by Zuma.

His affidavit is therefore defective on this score. For a High Court to intervene in the NDPP’s decision to institute prosecution would require more than political expediency; the ANC’s and ANCYL’s (and other Friends of JZ’s) public woefull wailings and threats of a renewed armed struggle (or revolution – Setumo!); or, even wild allegations of a political conspiracy without being able to name the actual conspirators and/or without being able to deny the allegations. If he want’s to make out a case that the case is nothing but a conspiracy to get him into trouble, he will have to test the allegations against him in a court of law, to see whether they are false and mere allegations, or true and evidence. Then he can just as well go to court and face his accusers before a court of law. But, instituting frivolous review applications like the current does nothing moore than to waste taxpayers’ money and the state’s resources. His actions to stop the prosecution, come what may, surely gives rise that he does not have a valid defence and that he is in fact guilty.

I still stand to be corrected on the facts, but as currently advised the application is a transparent tongue in the cheek long shot.
And when an acting NDP went into Pikoli’s post it was seamless – no requirement to do over whatever he previously did. So his previous decisions just stand and the acting guy goes on.

“Remember the definition of “administrative action””

Sorry remember does not apply to me as I did not study law. I am merely working at this from my limited layman’s perspective, hence the questions.