Quote of the week

An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.

Plasket AJ
Victoria Park Ratepayers' Association v Greyvenouw CC and others (511/03) [2003] ZAECHC 19 (11 April 2003)
19 February 2007

Desperation Stations……

Schabir Shaik’s lawyers have been taken to task for “manufacturing” constitutional issues in the State’s answering affidavit to the Constitutional Court. The papers form part of the application from Shaik’s legal team for leave to appeal to the Constitutional Court.

The big problem for Shaik seems to be that his lawyers never raised any constitutionally related complaints in either the High Court or the Supreme Court of Appeal. According to a report on News24 the State’s special investigator Johan Du Plooy argues that:

Shaik and his legal team have attempted to “manufacture” constitutional issues by putting forward new evidence that played no part whatsoever in his trial or the appeal case. Du Plooy says Shaik’s application rests largely on about 3 000 pages of “factual material” that did not appear anywhere in the appeal case. He says the applicants (Shaik and his companies) “have made little attempt to demonstrate that (the appeal court) erred in its analysis of the evidence before it”.

He argues that the application for leave to appeal “is based almost entirely on new evidence, which is alleged to give rise to constitutional issues”. He says most of the new material emanates from the Zuma trial and the State’s application for postponement.

If this is true, it is difficult to imagine that the Constitutional Court will allow leave to appeal. They have to find that there were indeed constitutional issues at stake, that there was a reasonable prospect of success in the appeal case and that it was in the interest of justice to grant leave to appeal.

But if such issues were never raised, and if they are now raised in the vague and conspiratorial manner of the Zuma documents, the Court will be extremely reluctant to grant leave to appeal in the Shaik case. Granting leave to appeal might set a precedent for other rich criminals who wish to have a last bite at the cherry to avoid jail time.

But maybe the lawyers know their case has little chance of success. Shaik may be playing a more long-term game, hoping to keep alive the conspiracy theories hinted at by Jacob Zuma, to further Zuma’s political ambitions. We have seen that the air has gone out of Zuma’s campaign since the suspension of the case against him. Providing another platform at the CC for these allegations to be aired, may help to remind people of the alleged “terrible injustice” done to Mr Zuma.

If Zuma is President, he will, after all, have the right to pardon Shaik. And his buddies will be ministers in a government with power to issue many lucrative contracts.

Naaah! Surely I am now turning into a conspiracy theorist myself. Or not?

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