As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
The National Prosecuting Authority (NPA) yesterday acted like a reckless gambler who has lost almost all his money and then wages his house, his car and the clothes on his back on a hopeless bet in a desperate attempt to regain some of his losses.
And the losses are great and piling up.
Let’s summarise the reasons for the decision. The NPA believes that Mr Zuma still has a case to answer in court and that it has a winnable case against him. It also believes that Mr Zuma will be able to receive a fair trail.
But it claims – without giving Mr Leonard McCarthy a right to be considered innocent until proven guilty – that the head of the Scorpions allowed interference into his decision regarding the timing of re-charging Zuma. Nobody has said that the Scorpions have fabricated evidence. Nobody has said that the NPA does not have a winnable case against Mr Zuma. But because of interference in the timing of the charges, the NPA decided to drop charges against Zuma.
This line of reasoning seems a bit perplexing, to say the least.
First, the NPA quotes at length from a decision handed down by Lord Steyn in the House of Lords to justify its decision. But we are not a colony of Britain (as Robert Mugabe might have pointed out) and unlike the UK we have a written Constitution. A decision to prosecute or not to prosecute has to be taken in terms of our Constitution and our law and not what Lord Steyn said regarding a country without a written Constitution.
Second, the NPA quoted at length from the decision of Harms in the appeal against the Nicholson judgment but failed to mention the last sentence of the relevant paragraph where Harms said that a prosecution will only become unlawful if it was not brought to secure a conviction for the accused but for another purpose.
In this case, it is very clear that the purpose has always been to secure the conviction of Mr Zuma and the outrageous manipulation of the process to try and influence the Polokwane vote does not change this in any way. I fail therefore to see how it can be argued that the interference should lead to a dropping of charges.
What should happen is that Mr McCarthy and Bulelani Ngcuka should be investigated to find out whether they breached the NPA act which prohibits interference in its work. Mr Zuma and his lawyer, Mr Hulley should also be investigated because they had in their possession recordings which were criminally handed over to them and they might well be guilty as accomplices in the commission of a crime that carries a ten year prison sentence.
Third, if one tries o fit in the reasoning of the NPA into the prosecuting policy – which unlike precedent from colonial Britain the NPA is actually legally bound by – it is difficult to see how a decision not to charge Mr Zuma under these circumstances can be justified in relation to this prosecution policy.
In fact, one would think that allegations that Mr McCarthy had colluded with Ngcuka about the timing of the charges would have led the NPA to try and demonstrate that it was prosecuting Zuma without fear favour or prejudice, despite the shenanigans of Ngcuka and McCarthy.
But inexplicably, the political heads of the NPA overruled the lawyers and decided to drop charges, thus further tarnishing the image of the NPA and inexorably creating the impression that it was not influenced by legal considerations – despite all the bells and whistles trotted out by Mpshe – but political considerations.
Instead of trying to salvage the image of the NPA it has further muddied the waters.
Mr Zuma, of course, still has a case to answer. An organ of state has consistently believed that Mr Zuma is a crook. If they never believed this, the manipulation about the timing of the charges would never have arisen. Mr Zuma will therefore proceed to become our President with a dark cloud over his head. Like the NPA his credibility would have been severely affected.
For many of us this decision is an outrage. It suggests that the NPA buckled under ANC pressure to drop the charges and the tapes gave them the excuse to do so.
And the big problem for Mr Zuma and his supporters was that Mr Zuma was charged while others were not. Some ANC members were protected from prosecution and Mr Zuma not. This was the alleged political persecution. Let’s face it, the facts and the law suggest Mr Zuma is a deeply compromised person.
The effect of this decision by the NPA is that we all now know that not only some, but ALL ANC members are above the law and can do anything they want, without fearing that they will be prosecuted because if they are prosecuted pressure will be brought to bear on our institutions to “protect” them from “persecution”.BACK TO TOP