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.
Lawyers for President Jacob Zuma and the NPA are deploying all the technical legal arguments at their disposal to try and prevent the DA from obtaining all the documents on which the Acting Natonal Director of Public Prosecutions (NDPP), Mokothedi Mpshe, relied when he made the decision to drop all charges against President Jacob Zuma. Their strongest technical argument – in-between the grandstanding and the irrelevant political broadsides – is that the DA has no standing in the case because no constitutional right is in issue and the DA has no direct interest in the case.
If one alleges that a right in the Bill of Rights has been infringed, then the very broad provisions of section 38 will kick in and the DA will clearly have standing to challenge the decision. This section allows anyone to approach the court, whether they are acting in their own interest; acting on behalf of another person who cannot act in their own name; acting as a member of, or in the interest of, a group or class of persons; acting in the public interest; or an association acting in the interest of its members.
That seems to be one of the reasons why the DA is alleging that the decision to drop charges against Zuma was reviewable in terms of the Promotion of Administrative Justice Act (PAJA). Section 33 of the Bill of Rights guarantees for everyone the right to administrative action that is lawful, reasonable and procedurally fair. If the decision to drop charges is reviewable under the PAJA, it would implicate section 33 of the Bill of Rights as PAJA “operationalises” this section. That would mean that the DA would clearly have standing, given the broad parameters of section 38 set out above.
However, if a court finds that the decision is only reviewable on the grounds that the NPA had not acted in terms of the law and the Constitution when it dropped the charges against Zuma (because it failed to adhere to its own prosecuting policy, which it is constitutionally required to do), then the question of whether the DA has standing to challenge the decision becomes legally more interesting.
That is not to say that one could not argue that the DA would have standing – even if this is a Rule of Law issue and not an administrative law issue. Where a supposedly independent institution like the NPA fails to uphold the Rule of Law and drops charges against the leader of the majority party on spurious grounds, one could argue that the official opposition would be directly affected. If such an opposition party, who professes to adore the Constitution (unless the abolition of the death penalty is involved, in which case all bets are off), cannot bring an application to uphold the Constitution, who can?
Besides, so the DA might argue, how could it compete fairly in the political arena if an independent constitutional body like the NPA fails to act without fear, favor or prejudice against members of the governing party? Surely minority parties have a direct interest in upholding the Rule of Law, because without respect for the Rule of Law, they stand very little chance of ever convincing the public that some leaders in the governing party are corrupt and may have abused the Constitution. And if they cannot do that, how will they get the majority of voters to vote for them?
Of course, whether it is in the interest of the DA to have President Zuma prosecuted is another matter. Cynics might argue that it is in that party’s interest to ensure that Zuma remains President for as long as possible – what with his family troubles, his inability to lead, and his apparent inability to impose his authority on the fractious tripartite alliance members.
And given the fact that the DA – like the ANC – contains its fair share of old National Party members and is generally perceived – unlike the ANC – to hold values that are not shared by the majority of South Africa’s voters, the DA is probably not going to convince too many ANC voters to vote for them – even if they can get the NPA to adhere to the Rule of Law, to act independently and to prosecute Zuma.
As yet I have no firm views on whether the President and the NPA will be successful with this technical argument about the right of the DA to bring the review application. There might well be a judge somewhere who finds the arguments of Zuma and the NPA persuasive. What I do know is that the assertion made by President Zuma’s lawyer that he cannot be charged because he is a sitting President, has no basis in law and is obviously not tenable. This assertion will only become true if the Constitution is amended to indemnify a sitting President from prosecution. This is because such an indemnity would constitute a fundamental breach of the principle of the Rule of Law and at present it would thus be unconstitutional.
More interesting for me is the question of whether there is any use in spending all this money in trying to have the original decision of the NDPP set aside. Given the fact that President Zuma has appointed Menzi Simelane as NDPP and Simelane is about as likely to prosecute Zuma as Bafana Bafana is likely to win the World Cup by beating Brazil 6-0 in the final, one may ask whether the DA is not wasting its time and money with this application. Even if it wins the case, it will be a pyrrhic victory as Simelane will almost certainly revisit the decision and will surely decide not to prosecute the President.
He will be able to point to a country like France, where articles 67 and 68 of that Constitution makes clear that the President of the Republic enjoys immunity during his term of office. In France the sitting President cannot be requested to testify before any court and cannot be prosecuted either. However, the statute of limitation is suspended during his term, and enquiries and prosecutions can be restarted, at the latest one month after he left office.
Simelane will be able to point to such provisions and will then be able to argue that it is not in the national interest to charge a sitting President. The President, so the argument might go, will spend all his time in court (or dealing with family trouble) and will have no time to govern the country and that would not be in the “national interest”.
But this does not mean that – from the DA perspective – this application is not worth pursuing. If the party can lay its hands on the report by the prosecutor in the Zuma case which sets out in great detail why he believes there is a winnable case against President Zuma, it will severely embarrass the majority party and its leader. Zuma would be weakened and this might benefit the DA in that many ANC voters will become (more?) disillusioned with the ANC and might stay home come the next election.
Zwelenzima Vavi, who turned a blind eye to the credible allegations of corruption against President Zuma and refused to admit that Zuma had a case to answer, might be forced to rethink his position as well. After all, he berated Zuma last week for not investigating far less credible claims of corruption leveled against some of the Ministers in Zuma’s cabinet. If Mr Vavi was consistent, he would have to insist that the very strong case against Zuma be brought to court so that a court could once and for all decide whether our President is corrupt or not.
I wonder whether that is not the real reason for the President and the NPA’s legal maneuvers. They would surely want to prevent the DA from obtaining documents that would remind the people of South Africa that prosecutors in the NPA believe the President is guilty of corruption. Now that Thabo Mbeki is no longer President (and hence, no longer a handy enemy to rail against to help rally the troops) and the Polokwane alliance is showing signs of disintegrating, this is the last thing that Zuma can afford.
Who knows? One thing is certain though, even if the NPA loses these preliminary skirmishes, they (along with the President’s lawyers) will surely go on fighting tooth and nail to stop the DA from obtaining the relevant documents. After all, as Bill Clinton found out during his second term in office: the truth can be a rather bothersome thing to deal with – even for a President.BACK TO TOP