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.
Sometimes commentators from Cosatu, ANC Youth League and the Young Communist League (well, the ANC and the Democratic Alliance as well, come to think of it) are reported to have said something so breathtakingly stupid that one thinks that maybe they were misquoted. When I read that a Cosatu spokesperson had said that Mr Zuma cannot get a fair trial because the trial was politically motivated I almost laughed out loud. What idiot came up with such a statement? For the record, Cosatu said:
The trial against Zuma is a politically motivated exercise … and he has been subjected to trial by public opinion for the past seven years. We have been convinced for some time that he will not get a fair trial … workers will not allow the NPA [National Prosecuting Authority] and whoever is handling them to abuse its power in this matter.
Now, I have been wondering myself whether the prosecution of Mr Zuma (contrasted with the absence of the vigorous investigation and eventual prosecution of many others involved in the arms deal – I am thinking of Chippy Shaik, for example) by the NPA may not have had a political slant and have bemoaned the perception that has been created that the NPA is not independent but under the thumb of President Thabo Mbeki.
But even a first year law student (those who pass at least) would be able to tell you that there is a vast difference between the Scorpions (who investigates serious crimes) and the NPA (who decides who to prosecute) on the one hand, and the members of the judiciary on the other. It might seem unfair that Mr Zuma was singled out for investigation and prosecution but this does not mean members of the judiciary – who are independent in every way and have nothing to do with the NPA – will not be able to give Mr Zuma a fair trial.
Judges in South Africa have a rather good reputation of independence and impartiality and thier independence and impartiality are also guaranteed in the Constitution. Our Constitution also provides criminal accused with an extraordinary array of protective guarantees to ensure that every accused receives a fair trial before an impartial and independent judge. Mr Zuma himself – a man unfortunately not averse to making idiotic utterances – have said criminals (by which he meant “innocent-until-proven-guilty” accused persons like himself) have too many rights and that rapists (by which he means people like himself charged with rape) should not have the right to legal council.
Mr Zuma has also very effectively used these Constitutional guarantees to try and stop his trial and also to delay it. Given these safeguards and given the institutional independence of the judiciary, it is extraordinary for Cosatu to suggest that a judge would be unduly influenced to convict Mr Zuma – even where the State has failed to show beyond reasonable doubt that he is guilty of any of the charges brought against him. There is absolutely NO evidence for this.
In fact, I would go as far as to say that if anyone in the whole wide world will get a fair trial, it is Mr Zuma. This is because there is so much scrutiny of the case and, more important, Mr Zuma seems to have unlimited funds to pay the best lawyers to defend him. He will therefore have a legal defence as good or even better than that OJ Simpson (who we all know really did it, but was aquitted).
In fact, given the immense resources available to Mr Zuma’s legal team it will be a bit of a miracle if the State manages to get a conviction against Mr Zuma at all. I suspect that is why the State has added some charges including racketeering and money laundering which, in terms of the Prevention of Organised Crime Act, is slightly easier to prosecute for technical reasons.
And even if he is convicted Mr Zuma will be able to appeal first to the Supreme Court of Appeal and then to the Constitutional Court. The latter Court has a world wide reputation and its judgements are quoted in textbooks and taught at Universities across the world. To suggest that such a Court would convict Mr Zuma because of political bias on the part of judges, is scandalous and disgusting. The Cosatu person who wrote that statement should be fired.
The statement is even more problematic, given the fact that the independence of the judiciary seems under threat from the ANC, who at its Conference apparently adopted a resolution endorsing a Constitutional amendment that would place absolute administrative and budgetary control of the courts in the hands of the justice minister, giving the minister the power to veto rules of court, and giving the president of the country more power in the appointment of acting Constitutional Court judges and judges president.
No wonder the retired Chief Justice and Human Rights Lawyer George Bizos have issued a statement in which they express concern about statements like that of Cosatu’s that our judiciary as a whole lacks the independence and integrity to ensure that Mr Zuma will receive a fair trial.
In the end the statement by Cosatu seems to reflect a realisation that Mr Zuma has a very serious case to answer and that his trial will cause him immense damage. It is probably a pre-emptive strike from a desperate bunch of people who backed an ANC President who the highest court in the land has confirmed had taken a pot of money from a convicted fraudster and then did some favours for him.
Mr. Zuma may never be convicted of any crime, but he sure looks dodgy and crooked. To answer these perceptions, Cosatu is now trying to impugne the integirty of the judiciary. Let us hope it does not succeed because if it does, Cosatu would have destroyed a central pillar of our democracy.BACK TO TOP