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
5 August 2008

Double standards of the Zuma defenders?

There must hardly be a person in South Africa who cannot recite off by heart when woken up in the wee hours of the morning that Mr Jacob Zuma is innocent until proven guilty. And rightly so. Mr Zuma and those who defend him politically (which is not the same as his legal defense) have rightly cautioned South Africa not to assume that Mr. Zuma is guilty of any crime before he is actually convicted in a Court of Law.

No one should be presumed guilty by an independent and impartial court of law merely because that person is not liked by certain sections of the public – especially the chattering classes – or because the media has reported in detail on the accusations to be leveled against that person during a trial.

After all, section 35(3) of the Constitution clearly states that every accused person has a right to a fair trial, which includes the right to be presumed innocent, to remain silent, and not to testify during the proceedings. The Constitutional Court has made clear that this right is a fair trial right and is based on the assumption that every person must be presumed innocent by the judge or presiding officer hearing the case. This right would be breached if it becomes impossible for a judge or other presiding officer to come to an impartial and independent decision – based on the facts tendered by the state and the defense put up by the accused – on whether the accused is guilty beyond reasonable doubt.

But the Constitutional Court has also indicated on several occasions that no one has a right not to be investigated or charged with a crime. When one is investigated and eventually charged, this will obviously affect one’s standing in the community and one’s dignity and privacy will be affected. But, said the Court, this is an inevitable consequence of any system in which the police or other investigative bodies are given the powers to investigate crimes and bring charges against individuals.

Those who defend Mr Zuma often refer to his presumed innocence but then quickly argue that his rights have been trampled upon because of the investigation against him. In doing this they often wrongly conflate the presumption of innocence requirement with that of breach of other rights and have also often done what they accuse others of doing – namely of prejudging a question that really only a court of law is competent to adjudicate on.

Thus Jessie Duarte, the pugnacious and utterly charmless spokesperson for the ANC, stated as a fact yesterday that Mr. Zuma had been subjected to malicious prosecution by the NPA and that the ANC, while respecting the judiciary, had serious reservations about whether Zuma would get a fair trial.

The ANC president has been persecuted by the media and tried in the court of public opinion for well over seven years. We want the charges dropped. In 2006 they were chucked out of this very court. Now the NPA has come (up) with new charges, one which includes issues of taxation. Yet the South African Revenue Service is not even the complainant. The other charge relates to racketeering, which involves Jacob Zuma’s daughter having a R10 car wash. Let’s face it, the NPA has tried to use public opinion against Jacob Zuma.

I find this kind of statement to exhibit a breathtaking double standard as well as being ignorant of constitutional rights in the criminal procedure field.

The last time I checked, no court has ever found that Mr. Zuma’s rights have been infringed. Neither has any court ever found that Mr. Zuma has been maliciously prosecuted or that his right to a fair trial has been infringed in any way. If it turns out that all those alleged “apartheid era spies” at the Scorpions had fabricated the whole case against Mr Zuma – including evidence of a meeting with the arms company and evidence of payment of more than R4 million to Mr Zuma – then a court may well find that this was a malicious prosecution. They may also consider whether missteps by the NPA would make it impossible for an impartial and independent judge to presume his innocence until such time as all evidence was presented to the court.

In the absence of such findings, the ANC representatives are doing exactly what they are charging others of doing, namely prejudging a case – this time not against Mr. Zuma but against the NPA or sommer the judiciary as a whole. Even the NPA must be presumed innocent – thus presumed not to have infringed Mr. Zuma’s rights or not to have prosecuted him without at least some good reason – until such time as a competent and impartial court makes a finding on this matter. It is also for a court to decide whether the NPA’s actions would make a fair trial impossible.

These attacks on the NPA and the judiciary – both constitutionally created institutions of the utmost importance – by people who are supposed to revere and uphold the constitution and the rights of everyone, is hypocritical, self-serving and dangerous. People like Ms Duarte seems to demand respect for the rights of Mr. Zuma while utterly disregarding the rights of the rest of us ordinary citizens or of the institutions created to safeguard our rights.

There is a good political reason for this, of course, which has nothing to do with respect for human rights of Mr Zuma or anyone else. If one viciously and ignorantly attacks everyone and anyone who might dare to suggest that Mr. Zuma has a case to answer, there is a good chance that we would be distracted from the very real moral and ethical question marks about the President of the ANC that are posed by Mr. Zuma’s prosecution.

These are classic guerrilla tactics. How nice it would be if we could (also) focus some debate and attention on the question of whether Mr. Zuma is a morally and ethically sound person – regardless of whether he is ever convicted of any criminal offense. Why is it not possible to ask – without being called a ANC-hating, racist apartheid spy – whether we really want as a President of our country a man who, by all accounts, faces very serious criminal charges?

I have my suspicions why not: because that is an argument the ANC cannot easily win. Many people who voted for the ANC do feel uncomfortable with the ethical and moral probity of Mr. Zuma and many of those who are attacking our Constitution, the NPA and the judiciary secretly know this all too well. The one thing the ANC wants to avoid at all cost is to legitimize the concerns of this essentially honest and decent silent majority in South Africa. Hence the endless attacks not based on proven facts or sound legal principles, but on political expediency, thuggery and desperation.

2015 Constitutionally Speaking | website created by Idea in a Forest