An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
News that Mokotedi “Kokkie” Mpshe plagiarised a decision of a Hong Kong court that was later overturned on appeal when he tried to justify his decision to drop charges against Mr Jacob Zuma, is of course highly embarrasing. But does it have any legal significance? And what does this say about the NPA – which is constitutionally required to act without fear, fabvour or prejudice – and ít integỉty and independence?
I, for one, was not surprised by this news. The weird string of cases from the House of Lords mentioned in the Mpshe document, seemingly strung together without much attempt at logic or reason, always struck me as odd. South Africa has a written Constitution and the NPA has a legal duty to follow our own prosecution policy when it decides to continue a prosecution or drop charges against an accused despite there being a winnable case against the accused. The Hong Kong court’s views on this issue was therefore allways going to be legally of little value.
And as the legally binding prosecution policy makes clear, sometimes the NPA will have a duty to prosecute no matter what the circumstances might be. This will depend on the seriousness of the charges, the effect of the kind of crime on the morale and well-being of the nation and whether the dropping of charges would send a signal to the public that would make them lose trust in the criminal justice system.
The plagiarised sections of the NPA decision were therefore always – to my mind – legally utterly irrelevant. These were the bells and whistles used by Mpshe to justify what seemed like a pretty unjustifiable decision – at least from a legal perspective. But it does seem to destroy the little credibility Mpshe had left before he took thí leap over the abbyss.
Maybe it is at this point good to recall what happened when then President Thabo Mbeki suspended Vusi Pikoli and “Kokkie” Mpshe was appointed as acting head of the NPA. Remember, Pikoli had obtained a warrant for the arrest of the Police Commisioner as well for a search and siezure of his premises and the then President really was not amused and wanted Pikoli to stop (or at least wait with) the arrest.
The same night Mbeki suspended Pikoli, and newly appointed Mpshe himself drove to the magistrate to have the arrest warrant overturned and sent someone else to have the search and siezure warrants overturned (or it might have been the other way around?). At the Ginwala Commission it transpired that Presidential adviser, Mojanku Gumbi, and Director General of Justice, Mendi Simelane, helped draft the documents to have these warrants overturned.
But when Debra Patta asked Mpshe a few days later if he had gone to the judge to overturn the warrants, he denied that he had done so. That was because he had actually gone to a magistrate to overturn the arrest warrant and he could mislead Patta (and the nation) without actually telling a bare-faced lie. His underling had gone to the judge and was not succesful in his bid to have the other warrant overturned.
It is only a fool that will think he did this without any interference from the Presidency and/or the government. Why else would Gumbi and Simelani help with the drafting of the papers? Why else was Pikoli suspended?
Seems to me it was not only the letter written by Simelane and then signed by Justice Minister, Brigitte Mabandla, to Pikoli instructing him not to proceed with the execution of the arrest and search warrants against Selebi, that could possibly have constituted criminal interference with the NPA in contravention of the NPA Act. Someone at the Presidency may also have to be investigated and may then very well have to be charged with this criminal offense.
Mpshe has therefore demonstrated in the past that he does not have exactly the same – correct – view on the independence of the NPA as Vusi Pikoli and that he definitely does not have the backbone of Pikoli either. When Mpshe then said that the decision to drop charges against Mr Zuma was made under time pressure, and that there was interference in the timing of laying the charges, the alarm bells went off.
After all, Mpshe was supposed to have made the decision on when to charge Zuma and now he was blaming others for interfering with the timing of the decision he had claimed to have made himself. Moreover, Mr Zuma’s application for a permanent stay of prosecution was only to be heard in August, so what was the time pressure Mpshe spoke about? Could the time pressure relate to the looming election and perhaps to some informal deal struck with the ANC bigwigs to drop charges before the election?
This suspicion is enhanced by the fact that Mpshe had invited Mr Zuma to make representations to him about his case, despite the fact that the Supreme Court of Appeal had found that there was no such legal duty on the NPA and the case was still under consideration by the Constitutional Court. Why did Mpshe suddenly invite Zuma to make representations – even though he had no duty to do so? Was it suggested to him that this was a way of securing his career advancement? When and how was this decision taken? Who “engaged” Mpshe on behalf ò Zuma before this decision was taken?
In a case reviewing the decision of the NPA answers would have to be found for these perplexing questions. One need not be a conspiracy theorist to suspect that Mpshe had buckled under pressure from Zuma or someone close to him and that a decision to drop the charges was then made before any of the evidence of the alleged interference was ever presented to him. Could it be that a reason had to be found for this outrageous decision, so the representations were made and the reasons cooked up after the fact?
I suspect that because the decision to drop charges met with stern resistance from the lawyers within the NPA, the reasons provided for the dropping of charges were narrowly tailored to placate these lawyers who knew they had a winnable case. So flimsy reasons had to be cobbled together and this has now completely undermined the credibility of the NPA and opened it up for a review of the decision.
If the NPA had merely said that after receiving representations from Zuma it had decided there was no winnable case against him, that would have been the end of the matter. But because the lawyers said they would not agree to such a statement, Mpshe had to steal some phrases from an overturned decision in that bastion of democracy, Hong Kong, to justify an essentially predeterimined outcome.
I sincerely hope I am wrong. But at this point the ball is in Mpshe’s court to demonstrate why we should have any trust in his credibility. Sadly the credibility of the NPA has also further suffered in the process. Which two-bit crook with money now charged with a crime is not going to claim that the NPA conspired against him or her?
The only way to restore some credibility to the NPA is for Vusi Pikoli to be reinstated. Seems he was the only political appointee who stood his ground against interference from the politicians, the only mad with some principles. Which obviously cost him his job. But then again, as Pikoli has learnt so bitterly: One cannot afford principles if one wants to remain in favour with the present ANC crowd.BACK TO TOP