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.
In June this year I wrote on this Blog that Jacob Zuma was “fading fast” and that his Presidential bid was “done for”. Now less than a week before the Polokwane conference it is perhaps appropriate to eat humble pie and admit that I was spectacularly wrong. Even if Thabo Mbeki manages to win – which seems almost impossible – it is clear that Jacob Zuma’s Presidential bid has real traction with the rank and file of the ANC.
What follows is an extended version of my article which appeared in Business Day on Friday in which I really try to understand why I got it so wrong. Being a paid up member of the chattering classes obviously has its drawbacks…. Here goes:
A journalist phoned me the other morning to ask “just a few questions about some constitutional technicalities”. Driving to work past the shacks where phase 2 of the N2 Gateway Project was supposed to have “cleaned up” the area but where the inhabitants have so far resisted removal to far-off
“When Members of Parliament are convicted of a crime,” he said, “they lose their seat in the Parliament, hey? So, will Jacob Zuma lose his position as President if he is convicted of fraud and corruption after being elected President?”
My first reaction was that this was a clear sign that the chattering classes (of which I am, of course, a paid up member) had woken up to the nightmare of a Jacob Zuma Presidency. It took about one week, but there it was. After the initial glee and even delight expressed by many in private and in public about the heavy defeat of President Thabo Mbeki in the Provincial nomination process, panic about a possible Zuma Presidency is now setting in among many in the middle and upper classes of our country.
The subtext of almost all the conversations I have been part of and perhaps also the subtext of the journalist’s question, is that it is “too ghastly to contemplate” (as Prime Minister John Vorster said of majority rule in South Africa) that an “uneducated” peasant with twenty children, several wives, at least one mistress and a coterie of aggrieved hangers on could possibly take over from that other guy we do not really like either. Then there is that shower head growing out of his head that will make us the laughing stock of the world.
It is a bit like progressive Americans hearing that George Bush was killed in a plane crash and thinking: “Thank goodness we are rid of Bush”, only to realise after the initial euphoria has waned, “oh my god, now we are stuck with Dick Cheney!”
So much has been said about Jacob Zuma’s various moral weaknesses (and I have contributed my fair share to point these out) that it is difficult to keep a level head on the matter. When I read that Deputy President Pumzile Mlambo-Ngcuka reportedly said this past weekend that people should vote for someone who would rule the country correctly and that there were some who aspired to govern the country, but had no “understanding and sophistication”, it is difficult not to conclude that this is also about snobbery and class prejudice.
Is this smug middle class chauvinism which assumes that an “unsophisticated” person like Jacob Zuma cannot rule the country “correctly”, not at least a bit shocking and embarrassing for us who are supposed to believe in the egalitarian society envisaged by our Constitution? Is it not perhaps the very reason for Zuma’s popularity with the ANC rank and file who, after all, may also not see themselves as “sophisticated” but rather as down to earth people without the airs and the self-righteous arrogance of an Mbeki or a Mlambo-Ngcuka?
This kind of superior attitude – which seems to underlie much of the antagonism against Zuma within some ANC circles – seems to me completely counter productive. Such remarks just make the anti-Zuma lobby come across as know-it-all, arrogant snobs that look down on the ordinary people who vote for the ANC.
The problem is, of course, that the ANC has – with some laudable exceptions – refused to judge ANC cadres negatively unless a cadre had been convicted of a crime. The “innocent until proven guilty” mantra came to subvert and eventually delegitimise another kind of morality, a morality based on whether a person acted wisely and ethically, or at least whether a person had not acted completely selfishly, stupidly or morally reprehensibly.
By refusing to consistently judge ANC cadres for moral reprehensible behaviour unless they had been convicted by a court of law, the ethical bar was set so low that Jacob Zuma’s misdemeanors seemed rather tame. The highest court of the land may have confirmed that the Deputy President of the ANC had taken more than a million Rand from a convicted fraudster and then did some favours for that fraudster, but they were friends and in any case Comrade JZ is “innocent until proven guilty” and therefore cannot be ethically judged. Why can Police Commissioner Jackie Selebi be friends with an alleged gangster “finish and klaar” and Jacob Zuma cannot be friends with a fraudster whose brother was in charge of the Arms Deal nogal?
When President Mbeki then fired Jacob Zuma as Deputy President of the country even before he was charged with any crime and definitely long before there was even the remotest possibility of him being convicted, it seemed deeply unfair and, I would suggest, sent a signal that the “sophisticated” snobs was dealing with the “unsophisticated” Zuma, that man from the farm, because he was becoming too “uppity”. Thus Jacob Zuma’s Presidential campaign was born.
All through this debacle those of us in the chattering classes cheered on the Zuma prosecution for whatever reason, and now we find ourselves with a terrible middle class hangover.
In any event, I told the journalist that he had it slightly wrong. Section 47 of the Constitution states that members of the National Assembly cease to be eligible for membership of the National Assembly only if they had been convicted of a crime and had been sentenced to more than 12 months imprisonment without the option of a fine. That is why the Travelgate MP’s who made plea bargains that excluded a prison sentence are still in our legislature.
If Mr. Zuma is to become President, he will have to become a member of the National Assembly before he is convicted and sentenced for fraud and corruption (crimes which carry a 15 year mandatory prison sentence). Once elected by the majority of the members of the National Assembly, he will immediately stop being a member of the National Assembly and will cease being subject to section 47 of the Constitution.
Once elected as President, he would not automatically stop being President just because he was convicted and sentenced to more than a 12 month prison sentence. He could of course resign or the then pro-Zuma National Executive Committee (NEC) of the ANC could ask him to resign. Or the National Assembly could institute a vote of no confidence in him and his cabinet, which would only happen in our electoral system if the MP’s were so instructed by the then pro-Zuma NEC.
Finally the President could be removed from office in terms of section 89 of the Constitution if two thirds of the members of the National Assembly passed a resolution in this regard on the grounds of a serious violation of the Constitution or the law.
The fact that these issues are being discussed, means those who cannot imagine a Jacob Zuma Presidency are perhaps once again hoping that the National Prosecuting Authority and the Courts would save us form the man from Nkandla. So far all their best efforts of the NPA and its political bosses in this regard have failed, so I would not count on a conviction.
Maybe it is time to brush up on our class sensitivities instead.BACK TO TOP