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.
The ANC is using a new “argument” to try and avoid any criticism of Jacob Zuma, its seemingly corrupt leader, and a possible decision by the NPA to drop all the charges against him. But this “argument” is so stunningly misguided and shows such a spectacular misunderstanding of basic constitutional concepts such as the Rule of Law that one can only wonder about the integrity or intellectual abilities of those who make it.
This argument suggests that those of us who – in the absence of a plausible and convincing explanation – are worried that political and not legal considerations led to the dropping of charges against Zuma, are undermining the Rule of Law. Jacob Zuma suggested those who have questioned the move by the NPA to review the case against him and have expressed fears about the dropping of charges are undermining the criminal justice system and the NPA.
In a carefully choreographed campaign launched by the ANC in anticipation of the dropping of charges, Jessie – “Bull Dog” – Duarte then called this “rank opportunism”. “While the DA claims it respects due legal process, it will only do so if the outcome of that process serves its own political purposes,” Duarte said. At the same time Mathhews Phosa has written a completely muddled and legally misguided article in the Sunday Times in which he claimed section 179(5)(d)(iii) of the constitution gave Zuma a constitutional right to make representations to the NPA and that those questioning this move have made the constitution “their plaything, which they use to substantiate their political campaigns, instead of applying it consistently in the manner and spirit for which it was crafted”.
This ANC campaign is so cynical and so transparent that one is tempted to ignore it. But this argument was obviously workshopped by the cabal trying to get the President of the ANC off the hook by trying to intimidate those of us who might point to the elephant in the room, namely that the NPA as recently as last month told the Constitutional Court that they had a winnable case against Zuma. This argument will obviously be trotted out again and again in the coming days to try and divert attention from the rather inconvenient fact that Mr Zuma received R4 million and then did favours for the crooks from whom he received the money.
(Not even the most craven Zuma acolyte has denied that Zuma received money from a crook and then did favours for him,because that would be like denying the earth is round or that HIV causes Aids – well, good thing Thabo Mbeki is not on Zuma’s side!)
So, maybe it is worth while to point out how absurd and intellectually dishonest this line of “reasoning” is. And, hey, I am a lecturer after all, so let me give these miscreants a quick lesson on the Constitution and the law.
First, Phosa is dead wrong when he says Zuma has a constitutional right to make representations to the NPA. The Supreme Court of Appeal (SCA) recently found that when the National Director of Public Prosecutions revisits his own decision to charge or not to charge someone, the suspect has no constitutional right to make representations to the NPA. Phosa is therefore either worryingly uninformed, or he is trying to mislead the public (a nicer way of saying that he might be lying).
Second, the concerns about the dropping of charges against Zuma is based on a concern that it would signal a profound disrespect for the Rule of Law. At its most basic, the principle of the Rule of Law requires the state and independent institutions like the NPA to act in terms of the law. This means that these institutions cannot act in an arbitrary or capricious fashion, cannot act in bad faith, but must follow the law – regardless of the political exigencies.
Where the law sets out clear requirements for the dropping of charges against a suspect – as our law, embodied in the prosecutions policy, so obviously does – the Rule of Law requires the NPA to adhere to these requirements. If it failed to adhere to the law, it would be clear that it was acting in contravention of the Rule of Law and that its decision was politically motivated.
The ANC cabal is in effect making the deeply troubling argument that respect for the Rule of Law should include respect for potentially illegal decisions taken by a constitutional body like the NPA. In a kind of Orwellian double speak, they are pretending to defend the Rule of Law while supporting its potential demise.
If the NPA drops charges against Zuma, despite the fact that all available evidence suggest that Mr Zuma has a very serious case to answer, the decision might well be illegal. But the ANC heavies are now saying with the chutzpah of a man trying to sell ice to the Eskimo’s that if we point this out, we are undermining the Rule of Law. How dare we demand decisions based on the law and not on the political interests of the governing party. I mean really, who are we after all – we did not even donate any money to the ANC election campaign so how dare we have any opinion! After all, the interest of the Party and its Dear Leader is far more important than obeying the law.
If the NPA drops charges against Zuma despite the fact that a winnable case exists against him, this would not constitute “due legal process” as Ms Duarte seems to think. It would constitute the most flagrant abuse of power and the law and would thus undermine respect for the Rule of Law. Pointing this out would be an herioc fact, something seemingly lost on the scoundrels in the ANC spin machine.
That is why the NPA has a duty to explain a decision to drop charges against Jacob Zuma in full. They will have to present us with a cogent and logical explanation why the LAW required them to drop the charges. Only then will we be able to say whether this was a flagrant, illegal, act by NPA or something done in terms of the legal rules. I fear this is not going to happen.
I fear what will happen is that charges will be dropped without a proper explanation. The result would be that we will be stuck with a President who took millions of Rands from a crook and a seemingly corrupt arms company and then did favours for the crook and the arms company. Even if Mr Zuma is then never charged, we would then have every right to assume that he is a crook too.
I would think that if this happens we would all even be safe in calling him a crook. This is because if he wanted to sue anyone who calls him a crook, that person will only have to show on a preponderance of probabilities that it is true that Zuma is a crook. This will not be too difficult to prove – unless Mr Zuma’s lawyers have produced startling new evidence about his motives for taking the money and doing the favours.
If it came to this and I was an opposition leader, I would immediately call a press conference and call Mr Zuma a crook. I will then dare Zuma to sue me for defamation and will point out that a failure to sue will constitute an admission of guilt. I will then sit back and remind the public every three months that Mr Zuma has not yet sued – despite issuing the inevitable threats to do so.
Mr Zuma would then also not be able to complain that we have to respect his right to be considered innocent until proven guilty because that right only attaches to an accused in a criminal trial – which Mr Zuma will then never be. Patricia, hoe lyk dit?BACK TO TOP