Quote of the week

Mr Zuma is no ordinary litigant. He is the former President of the Republic, who remains a public figure and continues to wield significant political influence, while acting as an example to his supporters… He has a great deal of power to incite others to similarly defy court orders because his actions and any consequences, or lack thereof, are being closely observed by the public. If his conduct is met with impunity, he will do significant damage to the rule of law. As this Court noted in Mamabolo, “[n]o one familiar with our history can be unaware of the very special need to preserve the integrity of the rule of law”. Mr Zuma is subject to the laws of the Republic. No person enjoys exclusion or exemption from the sovereignty of our laws… It would be antithetical to the value of accountability if those who once held high office are not bound by the law.

Khampepe j
Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others (CCT 52/21) [2021] ZACC 18
8 January 2008

Cosatu, Chaskalson, Bizos and some more confusion

Cosatu has now dug a deeper hole for itself in defence of the indefensible when it yesterday attacked the statement by former Chief Justice Arthur Chaskalson and human rights lawyer George Bizos in which they bemoaned the way in which the labour federation was undermining the independence of the judiciary.

It’s spokesperson, Patrick Craven said that while Cosatu fully supports the independence of the judiciary, it remains upset about “people who are manipulating the judicial system for their own political ends”.

Of course, as I pointed out yesterday, the original statement clearly stated that Cosatu was of the opinion that Mr. Zuma will never get a fair trial no matter what, which means that Cosatu thinks that no judge will be able to be impartial and independent and will be able to hear all the evidence presented by the State with an open mind before deciding whether Mr Zuma is guilty of any of the charges brought against him.

This is very different from making claims that the criminal justice system might have been abused for political ends because Mr Zuma was charged while others involved in the arms deal were not. To say Mr Zuma would never get a fair trial has nothing to do with the alleged abuse of the criminal justice system by President Mbeki and the NPA.

If Cosatu’s spokesperson cannot see this difference, he really needs to come for some (re)education lessons. (Mr Craven could perhaps think of attending my Constitutional Law class this year if that would help!)

Cosatu’s position seems now more than ever deeply immoral and irresponsible and is not far apart from a very bad idea – in my opinion – floated on Sunday by Sunday Times editor, Mondli Makhanya that a Truth and Reconciliation Commission about the arms deal should be innitiated that would lead to amnesty for all people who stole our money by taking bribes during the arms deal.

It is a bad idea, first, because it undermines the Rule of Law, one of the pillars on which our democracy is built and one of the founding values set out in section 1 of our Constitution. 

I am not by nature a vengeful person (really) and I supported the idea of the original Truth and Reconciliation Commission despite some serious misgivings about giving amnesty to some of the most heinous murderers of the apartheid regime. But that was a unique moment in our country’s history and should remain a unique moment never to be repeated.

Respect for law and for the Constitution requires nothing less.

What Cosatu and Makhanya seems to suggest is that the arms deal is such a mess and so many very rich and important people seem to have been involved in it, that it would be better for us all (meaning the rich and well connected) if we decided that the law does not apply to these people – just this once, of course.

But “just this once” easily slides into “every time” and before we know it there is one law for ordinary hard working or unemployed poor people and another one for rich, well connected politicians and their cronies.

It suggests that Mr Schabir Shaik would have been prematurely wise to pay Mr Zuma millions of Rands to ensure he would be well connected and that this is the way to get ahead and stay out of jail in South Africa – no matter how crooked one may be. It would undermine respect for the law and would fundamentally erode the principle of the Rule of Law – further amplified by section 9 of our Constitution – that all (rich and poor, well-connected and nobody) are equal before the law. 

Cosatu seems to say it is unfair that Mr Zuma should be singled out and that any prosecution of him – no matter how guilty he might or might not be – would thus undermine the independence and impartiality of our judiciary. This comes close to saying that if Cosatu’s friends are tried in a court of law and they are convicted, this would mean that the courts are not impartial and that there therefore should be one set of rules for Cosatu’s friends and another for the rest of us ordinary mortals.

Second, it is a bad idea because the arms deal represents theft of the public money of all the people of South Africa. Every person who pays taxes through VAT or payroll taxes have been stolen from because we bought arms we did not need at inflated prices to line the pockets of some well connected people and perhaps (as Andrew Feinstein suggests in his brilliant book, After the Party) the ANC itself.

This money is not  only the money of rich white people but of poor people who could have received better medical treament, more social grants (the Basic Income Grant, perhaps?) better roads and better paid teachers to ensure a better future for their children.  Cosatu is therefore arguing against the very interest of its members and of the poor it is supposed to be sympathetic to.

What is required is not for charges against Mr Zuma to be dropped, but for someone with real  backbone to be installed as head of the NPA and the investigative services in the Scorpions and (if only!) the police to vigorously investigate all the charges of corruption associated with the arms deal and to go after all the crooks – no matter how well connected they might be. This includes an investigation of charges by Andrew Feinstein that the ANC itself benefited from the arms deal.

It might be that some of these allegations are untrue (although it is telling that Feinstein has not been sued for defamation by the ANC or anyone else fingered in his book – always a sign that there must be something up), but ordinary people will not know this unless everyone is investigated and eventually charged if necessary.

This latter position would be an ethically sound position for Cosatu to take but it would be rather inconvenient because that would most probably mean the end of Mr Zuma’s political career and who would they support then? So expediency before principle seems to be the word here.

All I can say is may Copsatu’s morals R.I.P.

Meanwhile, poor people go to jail every day for stealing stuff from rich people worth a few hundred Rand. I can’t recall Cosatu making a song and dance about that. But Mr Vavi would not like anyone to steal his fancy car or his cell phone or his new young wife’s hand bag I suppose, so nothing will be said about that.

This is called capitalist morality, I think.

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