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.
In 1991, Andre P Brink published a novel entitled An Act of Terror. It is a long and relentless expose of the brutality of the Apartheid regime, telling the story of Thomas Landman, an Afrikaner whose political allegiances change over time and who eventually becomes a freedom fighter. The Afrikaans version of the book is strikingly entitled “Die Kreef Raak Gewoond Daaraan (“The crayfish gets used to it”). As I recall, this strange title comes from the idea that even a crayfish dumped live into a pot of boiling water has no choice but to deal with its surroundings.
Humans can also get used to (and can even begin to accept) things that should, in fact, be intolerable. During the Apartheid years we got used to living in a godforsaken country. Many of us – black and white – went about our business, despite the obscenity of the injustices around us. We might not have liked it, many might have suffered because of it, but most of us got used to it in our own peculiar ways.
Times have changed. We live in a democracy with a relatively free press now. All of us can vote and can travel freely throughout the country – if we have the resources to do so. And those of us who are middle class and have access to resources can feel relatively safe in the knowledge that the police will probably think twice before assaulting, torturing or killing us.
But we are nevertheless in danger of getting used to things that no one in a democracy should ever be required to get used to. Increasingly, President Jacob Zuma is our pot of boiling water and ordinary citizens are the crayfish.
Remember that President Zuma avoided criminal prosecution for fraud and corruption because he allegedly provided the National Prosecuting Authority (NPA) with recordings of illegally taped phone conversations, which showed that there was some strategising about when to formally charge him. The then-acting head of the NPA, Mokotedi Mpshe, claimed that the NPA had obtained separate recordings of these conversations and used them to justify the dropping of charges. The Supreme Court of Appeal (SCA) ordered the NPA to hand these recordings and transcripts over to the applicants, pointing out that the “NDPP will be obliged to make available whatever was before Mr Mpshe when he made the decision to discontinue the prosecution”.
As the SCA pointed out in that judgement (which was only necessary because the NPA abused the legal process to stall the review), the NPA had to hand over all the relevant material, because without this record a court would not be able to perform its Constitutionally entrenched review function. The SCA thus ordered the NPA:
to produce and lodge with the Registrar of this Court the record of the decision. Such record shall exclude the written representations made on behalf of the third respondent and any consequent memorandum or report prepared in response thereto or oral representations if the production thereof would breach any confidentiality attaching to the representations (the reduced record). The reduced record shall consist of the documents and materials relevant to the review, including the documents before the first respondent when making the decision and any documents informing such decision.
Unless the NPA is lying, it inexplicably and illegally handed over the only copy of the recordings and transcripts of recordings obtained from the NIA to Mr Hulley, (President Zuma’s lawyer), instead of handing it over to the applicants. The NPA was not authorised to do this. The refusal by the Acting Head of the NPA to hand over the recordings must surely spell contempt of court.
Mr Zuma himself is not in contempt of court because he was not ordered to hand over the documents and recordings to the applicants. And talk of his possible impeachment is a waste of time. Section 89(1) states that the National Assembly can impeach the president on the grounds of a serious violation of the Constitution or the law, serious misconduct or incapacity. But this can only be done if two thirds of the members of the National Assembly support the removal from office. As the ANC commands more than 65% of the seats in the National Assembly and as President Zuma inexplicably remain the leader of the ANC, Zuma is not going to be impeached. It’s a waste of time and energy to talk about it.
But President Zuma is not above the law, and is not allowed to abuse his power to protect himself from prosecution or from revelations that the original decision to drop the charges was based on lies or half-truths. He cannot put pressure on an independent body like the NPA to ignore a court order. Neither can he keep quiet while others break the law to protect him without adverse inferences being drawn about his conduct and his character.
Let’s face it, President Zuma and his lawyer have serious explaining to do. (Giggling and pretending that you know nothing about anything stops being plausible and believable after a certain point.)
Was any pressure placed on the NPA illegally to hand over the recordings and transcripts to Hulley? Given the fact that these recordings and transcripts were supposedly independently obtained from the NIA, they should never have been given to Mr Hulley, who has absolutely no right to keep them. Why has Mr Zuma not ordered his lawyer to hand back the NIA recordings and transcripts to the NPA? Do these recordings and transcripts even exist, or was the existence of these recordings part of a big lie cooked up by Zuma, his lawyers and the NPA to justify the dropping of charges against him?
Is it plausible that the NPA would hand over these recordings and transcripts made by the NIA (if these recordings and transcripts exist at all) to a private person (Hulley) without making any copies? If so, who instructed this to be done? Who could possibly believe that the NPA would have handed over all recordings and transcripts without making copies unless they were ordered or pressurised by Mr Zuma or those working on his instructions to do so?
Somebody is trying to cover up something. The question is: who is doing the covering up and on whose instructions are they doing this? As is often the case with political scandals (shall we call it Corruptiongate or Zumagate or Mpshegate or NPAgate?), one of the biggest questions would be: what does President Zuma know, and when did he come to know of it?
Not that any of these crooked manoeuvres would do President Zuma and his protectors any good in the long run. As the SCA pointed out, the NPA and Zuma are between a rock and a hard place. The less information they provide to the applicants, the more likely it is that a court would look at this scant information provided and conclude that the decision of the NPA to drop charges against Zuma was itself corrupt and/or irrational.
In the absence of the recordings and transcripts supposedly independently provided to the NPA by the NIA, the court will almost certainly find that the original decision to drop charges against Zuma was unlawful. This would resurrect the charges, and President Zuma would once again stand accused of fraud and corruption.
President Zuma will then have to stand trial. Unless, of course, somebody manages to cook up another story to get the charges against the president dropped. But maybe by then we would have become so used to the manipulation of the criminal justice system that no one would notice.BACK TO TOP