Quote of the week

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.

Khampepe J
Zuma v Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector Including Organs of State and Others (CCT 52/21) [2021] ZACC 28 (17 September 2021)
16 October 2007

Constitution not ambiguous about the NPA

James Myburgh argues on the Politicsweb Blog that the problem with the present stand-off between Vusi Pikoli and the President can partly be blamed on the schizophrenic nature of the Constitution in this regard.

He correctly reminds us that the ANC government was very unhappy with the legislation adopted by the National Party government in 1992 which suddenly gave the Attorney Generals in each region wide independent powers to prosecute. The ANC felt that this independence would emasculate the new government and proposed the creation of one super national Prosecuting Authority with the power to intervene in prosecuting decisions in the regions.

Myburgh argues that this unhappiness of the ANC and its proposals – soon made into law – for a single prosecuting authority, was part of the power-hungry and Machiavellian move by the ANC to concentrate power in its own hands.

When the Constitution was negotiated in 1996, he argues, this power-grab was included in the Constitution. Thus the Constitution now states that the Minister of Justice has a final responsibility for the Prosecuting Authority and also gives the Minister a decisive say over the prosecuting policies that would have to be implemented by the National Director.

Myburgh seems to me to misjudge the nature of the constitutional compromise reached by the Constitutional Assembly while he overstates the ANC’s need for control at this juncture (1995). The Attorney Generals at the time had been appointed by the apartheid government and had not shown a keen interest in prosecuting the kinds of crimes that the constituents of the ANC were worried about: racially motivated crimes and the crimes perpetrated by agents of the apartheid state, for example.

The ANC therefore had a very good reason to want the government of the day to have a say in the prosecuting policy of the prosecuting authority. To allow the independent Attorney Generals to decide for themselves who to prosecute and who to investigate would really be to allow the continuation of apartheid prosecuting policies.

But what Myburgh does not acknowledge (ironically something also not acknowledged properly by Mervun Bennun in a defence of President Mbeki in Business Day) is that the Constitutional Assembly wisely limited the power of the politicians to interfere by clearly stating that the Prosecuting Authority had to act “without fear, favour or prejudice” and that legislation had to ensure that this is made possible in practice.

This section must be read in conjunction with section 1 of the Constitution which states that the Rule of Law is a founding value of the Constitution. The Rule of Law requires at the very least that all should be equal before the law and that friends of King Thabo should not be treated as if they were above the law. This must surely mean that the Constitution prohibits the executive from interfering in individual decisions on who to prosecute and who to investigate.

I would argue that far from being schizophrenic, the Constitution strikes a very good but delicate balance between the need to acknowledge on the one hand that the prosecution policy of a country always has a political dimension, while on the other hand recognising the need to safeguard the power of prosecuting authority to make individual decisions on who to prosecute and who not. The present crisis has arisen because the President is not respecting this wise constitutionally entrenched compromise.

The only ambiguity arises from the fact that the President and his spokespeople claim that the suspension of the National Director has nothing to do with an individual case and that the fact that a warrant of arrest was issued for Mr Jackie Selebi shortly before the Director’s suspension thus has nothing to do with the suspension of Vusi Pikoli. In other words, it arises from the lies emanating from the Presidency.

Only the most reactionary bootlickers and sycophants and other Presidential cheerleaders could possibly believe this Presidential version of events and only they can legitimately claim that the President has the Constitutional authority to do what he is busy doing now.

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