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.
Defenders of the decision by the National Director of Public Prosecutions (NDPP), Mokotedi “Kokkie” Mpshe, to drop charges against Mr Jacob Zuma make an important point that need to be answered.
I am not talking of the discredited and uninformed argument that Mpshe’s decision cannot be rewieved by a court. This argument is legally untenable and I have demolished it before.
Rather, I am talking about the political (or perhaps moral?) argument that those who say that the decision was legally untenable and that it was based on snippets of the illegally gained transcripts of conversations between the then head of the Scorpions and the previous NDPP, focus on the wrong thing and are hypocrites at best and elitist Zuma haters at worst.
Why, so the argument goes, do those of us who believe the decision was unconcionable keep on pointing out that the transcripts were obtained illegally and that a crime was committed while ignoring the shocking evidence of abuse of power by the NPA? Why do we minimise this abuse of power by talking about “mere” interference in the timing of the charges, when there was such clear abuse of the NPA by McCarthy and Ngcuka? Are we not rank hypocrites?
This is a good question that demands an answer.
The first thing to point out it that we do not know for certain whether actual interference occurred or, if it did, what the extent of this interference was. We have been provided with edited snippets of conversations which appear to show that Ngcuka and McCarthy were discussing the “best” timing for the charging of Zuma in order to try and influence the Polokwane vote. But this evidence have not been tested in court and surely – just like Zuma – Ngcuka and McCarthy must be presumed innocent until proven guilty by a court of law.
The snippets may have been taken out of context and may not be nearly as damning as Mpshe suggested. The conversations may not have had any actual influence on the timing of the charges – given that this decision was taken by Mpshe and not by McCarthy. Or this could be just the tip of the iceberg and the meddling in the Zuma matter may have gone much deeper than we suspect, Fact is, we simply do not know.
Second, the NPA has a constitutional duty to act without fear favour or prejudice. The NPA Act gives effect to this constitutional requirement by prohibiting anyone from interferencing with the work of the NPA. Anyone found to have done so is guilty of a crime and can be convicted and sentenced. It is absolutely imperative that if credible evidence exist of interference, those suspected of committing a crime must be prosecuted. Those who try to minimise this alleged abuse of power, are not doing the NPA or South Africa any favours.
But this is exactly the point: the way to deal with an alleged interference is to use the NPA Act to punish those who might have committed a crime. It is not to drop the charges of serious fraud and corruption against South Africa’s most powerful politician. One does not use a corkscrew to open a Coca Cola bottle, but that is exactly what Mpshe did. He used the wrong – extra-judicial – avenue to restore the credibility of the NPA and to punish the alleged wrongdoers, thus further eroding respect for and trust in the NPA.
Mpshe became prosecutor and judge at the same time and this is deeply problematic as it undermines the separation of powers between the NPA, which is an organ of state, and the judiciary, which is tasked with finding people guilty of a crime or acquitting them.
Third, the person who handed over the tapes and the one who received it are both also guilty of a crime. This is not a mere process matter and the Zuma supporters who make this argument. show a spectacular lack of respect for the law and for the rights enshrined in our Constitution.
The right to privacy is enshrined in the Constitution and at the very least it means that unless exceptional circumstances exist and unless it is mandated by law, the private conversations between two citizens may never be handed over to a private person and may never be made public – unless those involved in the conversations gave their permission.
It would set an extremely dangerous precedent if the conversations of private citizens could be tapped by the Intelligence Agencies at will and then could be handed over to a private citizen in order to give that citizen a political and legal “get out of jail card”. It is the kind of abuse of state organs that Zuma and his supporters have been complaining about, but now that the abuse has resulted in Mr Zuma being let off the hook, they have thrown this principle out of the window.
This suggests that Mr Zuma and his supporters were not so much worried about the abuse of the NPA per se. They were worried about the abuse of the NPA only because that alleged abuse was directed at Zuma. This is so hypocritical and unprincipled that it takes the breath away. It goes to the heart of the Rule of Law and respect for the rights of citizens.
What Mr Zuma and his lawyers did – and what Mpshe entertained – was unconscionable and deeply disturbing and to point this out is NOT to minimise the importance of the shocking allegations of interference made by Mpshe.
It is those who make this argument who are unprincipled and hypocritical as they demonstrate an utter lack of understanding of, or respect for, the Rule of Law.
An example will illustrate how absurd and wrongheaded this argument is.
Say I am (wrongly) accused by X of taking a bribe from a student, then having sex with that student, and then awarding that student a 75% mark. Say I then try to defend myself by hiring a hitman (maybe Najma Peterson could avise here) to kill X. The fact that X made a false accusation (perhaps because X failed the course offered by me and had a vendetta against me) could NEVER justify the killing of X and those who would point this out would never be accused of hypocrisy or of not taking seriously the fact that X made a false charge.
The only legally sound and ethically responsible way to deal with such a situation would be for me to go to a disciplinary hearing and prove my innocence, then to have X charged with fraud. Respect for the Rule of Law requires nothing less. Mr Zuma and his lawyers – with a little bit of help from their friend Kokkie – chose a shortcut that show a shocking disrespect for the law and the legal process.
I honestly and fervently hope this was a once off abberration and that this is not the way Mr Zuma will rule South Africa, because if it is the latter, we all have to be very afraid indeed.BACK TO TOP