The law, like the suburban American house, is designed to order a particular pattern of relationships, many of them oriented around the heterosexual nuclear family. For real people in contemporary circumstances to inhabit the house the law built, one has to find side doors and discreet corners, while the dominant space changes little and the façade remains unaltered. The two big L.G.B.T.-rights Supreme Court victories that came before Bostock—Windsor and Obergefell—did exactly that: they carved out a place for monogamous same-sex couples who want to marry (statistically, these are more apt to be white middle-class people like the plaintiffs) in the house of the American nuclear family.
If Jacob Zuma is ever tried and convicted, it would definitely not be because of the quality of his legal team. These guys know what they are doing. In their Heads of Argument for the appeal of the Nicholson judgment to be heard in the SCA today they pull out all the stops to try and show why Nicholson’s judgment was correctly decided.
At the heart of the matter is the question of how one should interpret section 179(5(d) of the Constitution, which states that the National Director of Public Prosecutions “may review a decision to prosecute or not to prosecute, after consulting the relevant Director of Public Prosecutions and after taking representations” from the accused person; the complainant; and any other person or party whom the National Director considers to be relevant.
Zuma’s lawyers argue this section must be interpreted broadly to refer to any decision by the head of the NPA to a review any decision to prosecute or not to prosecute – no matter who actually made the initial decision. The NPA lawyers argue that the section only applies to a review of a decision by any of the Directors of Public Prosecution in the provinces because this section is meant to safeguard the autonomy and integrity of the provincial directors and not to safeguard the rights of the accused – whose rights kick in only when the trial commences.
Zuma’s lawyers argue that the National Director cannot review decisions to prosecute or not to prosecute, save in the circumstances provided for in section 179(5)(d). If the NPA interpretation is followed, so they argue, this would mean the National Director can only review decisions to prosecute or not to prosecute taken by the provincial directors. But that would mean the National Director could not review such decisions taken by prosecutors or by a previous National Director and this would be absurd.
The interpretation of the NPA would then mean the decision by Pikoli or Mpshe to “review” the decision of Ngcuka not to prosecute Zuma would be impossible and that Zuma could never be charged again after Ngcuka decided not to prosecute. Surely, they say, such an interpretation would be absurd and would detract from the scheme of the Constitution which created the NPA as the single overarching prosecuting authority.
Moreover, they argue that every decision to prosecute or not to prosecute will resort under the jurisdiction of one of the provincial directors and that section 179(5)(d) merely requires that the relevant Director in whose jurisdiction the decision was made must be consulted before the National Director could review a decision by anyone in that jurisdiction to prosecute or not to prosecute.
According to Zuma’s lawyers the purpose of S179(5)(d) is not to balance respect for the autonomy of the provincial directors against the powers of the National Director. Instead, it is to protect the interests of the accused and the complainant when a decision to prosecute or not to prosecute is reviewed. They also argue that in effect this duty to take representations should also apply to ordinary prosecutors and provincial directors.
These arguments seem quite plausible. But they are not foolproof. First, the interpretation of s 179(5)(d) proffered by Zuma’s lawyers fail to explain which “relevant Director of Public Prosecution” would have to be consulted when a decision to prosecute or not to prosecute was not made by any prosecutor or provincial director, but by the National Director himself. The National Director does not resort under the jurisdiction of any Provincial Director so he would have to consult with himself. This would also be an absurd interpretation of the section.
Second, the NPA gave a very convincing explanation of the origins of this section, arguing that it was aimed at safeguarding the autonomy of Provincial Directors. The section could very easily be interpreted to mean that to safeguard that autonomy, the National Director had to consult the regional directors as well as the accused and the complainant whenever it reviewed a decision that fell within that relevant provincial directors jurisdiction. This would seem the most logical explanation of the section as it avoids the absurdity that the National Director would have to consult HIMSELF or his predecessor (who would not be in the employ of the state anymore!) when he wanted to review a previous decision by the National Director.
Third, it is not at all clear whether the decision to prosecute Zuma was a “review” of a previous decision taken by Ngcuka as the High Court threw out the case and there was therefore no case to review. The NPA will argue that the decision to prosecute Zuma was taken by Mpshe and that this decision was not a review at all – even if the interpretation of section 179(5)(d) preferred by Zuma’s lawyers is followed.
This interpretation would also be more in line with Constitutional Court jurisprudence about the rights of the accused, which seems to focus heavily on the rights of the accused during the trial and seem to suggest that it is at trial where the rights of the accused must really be jealously safeguarded.
It will be a fascinating day in court today – also because Mbeki’s lawyers will get a chance to deal with the other aspects of the case – namely the findings that Nicholson seems to have made about the political interference into the decision of the NPA not to charge Zuma and then to charge him. It’s interesting to note that Zuma’s lawyers are trying to put some distance between themselves and these findings as they probably know this is a very weak aspect of their case.
I can’t wait for the SCA to hand down judgment in this legal soap opera. Watch this space!BACK TO TOP