Quote of the week

Regard must be had to the higher standard of conduct expected from public officials, and the number of falsehoods that have been put forward by the Public Protector in the course of the litigation.  This conduct included the numerous “misstatements”, like misrepresenting, under oath, her reliance on evidence of economic experts in drawing up the report, failing to provide a complete record, ordered and indexed, so that the contents thereof could be determined, failing to disclose material meetings and then obfuscating the reasons for them and the reasons why they had not been previously disclosed, and generally failing to provide the court with a frank and candid account of her conduct in preparing the report. The punitive aspect of the costs order therefore stands.

KHAMPEPE J and THERON J
Public Protector v South African Reserve Bank (CCT107/18) [2019] ZACC 29 (22 July 2019)
2 December 2007

Goodbey Mbeki?

Will we see the end of President Thabo Mbeki even before the middle of next year? Speculation seems rife that if Jacob Zuma is elected President of the ANC in two weeks time, the Zuma camp will get rid of President Thabo Mbeki and replace him as Head of State with Jacob Zuma. From Mr. Zuma’s perspective there would be very good reasons for such a move – but few of them would be constitutionally acceptable.

Probably the most important reason for Mr. Zuma to get his hands on state power would be that he might then think that he could “control” the National Prosecuting Authority (NPA) as President Mbeki has been perceived to “control” the NPA. It is a most troubling thing to contemplate for those of us who believe in the Rule of Law and do not wish to see state institutions abused by politicians.

The Constitution and the legislation is clear that no politician has the legal right to “control” the NPA. Neither the Minister of Justice nor the President should have any say in the day to day running of the NPA and about individual decisions of who to investigate or who to charge because the latter must exercise its powers without fear, favour or prejudice. This means the head of the NPA must make individual decisions on who to investigate and charge without fear of being fired by the President, without feeling he or she has to do favours for those who appointed him or her, and without being influenced by the prejudices of those with their hands on state power.

But it became clear after the suspension of NPA boss, Vusi Pikoli, that the President does think that he has a right to “control” the NPA. The President suspended Mr. Pikoli after the latter issued a warrant of arrest for Police Commissioner, Jackie Selebi, and he did so on spurious legal grounds. For many of us, this finally confirmed that our President would only tolerate decisions made by the NPA boss if the NPA boss did his bidding for him. The fact that the President had no legal right to do this, just made his actions seem more brazen and abusive.

I was always dismissive of Jacob Zuma and those around him darkly muttering that there was a conspiracy against him from the highest echelons of the ANC. But after the suspension of Vusi Pikoli it became clear that there were good reasons why Jacob Zuma and Schabir Shaik was investigated when it is clear that many others in the ANC also took bribes during the arms deal saga. The NPA was “allowed” to pursue this one issue but – as Andrew Feinstein points out – they were obviously not “allowed” to pursue others like Chippie Shaik, Joe Modise or the ANC itself.

Mr. Zuma might well want to follow this tradition created by Thabo Mbeki and may be all too happy for Mr Pikoli to be replaced by a “disciplined cadre” of the ANC who would make charges against him and other aggrieved ANC people go away. This would constitute a gross abuse of power but does not seem much more abusive than what has been done by the Mbeki faction.

Could President Mbeki be so easily disposed? As he is deployed by the NEC as President of the country, a new NEC could try and recall him and ask him to resign. Mr. Zuma could then take up a seat in the National Assembly and be elected as President by the 293 ANC MP’s in the NA. Luckily for Mr. Zuma, if elected in this way, he would cease to be a member of the NA because the NA would otherwise have had to act against him for not declaring the more than million Rand in “gifts” given to him by Shabir Shaik as confirmed by the highest court in the land.

If President Mbeki refused to resign, section 102 of the Constitution would allow the National Assembly to adopt a vote of no confidence in the President. All that is needed is 200 votes in the NA, packed by ANC members who will depend on their future position on the ANC election list on the goodwill of the new pro-Zuma NEC. If they adopt such a vote of no confidence, the NA will have to elect a new President within 30 days. They will obviously be instructed to elect Jacob Zuma.

More radically, the new pro-Zuma NEC could also decide to instruct the ANC members of the NA to pass a resolution dissolving the Parliament in terms of section 50 of the Constitution after which the President will be constitutionally required to call a new election. Either way, President Mbeki will be history if the NEC decides so.

One final peculiar question arises: The President has the power to pardon or reprieving offenders in terms of section 84(2)(j) of the Constitution. Could President Zuma pardon himself if elected? I would argue that constitutionally he cannot pardon himself because a decision to pardon or reprieve can be reviewed by the Constitutional Court. A decision that is arbitrary or capricious or show naked preference will not be constitutionally acceptable. To pardon oneself is in essence a decision that shows naked preference and would signal that one views oneself as above the law – something that flies in the face of the founding value of the Constitution, namely the Rule of Law.

But surely we will not get to that? Or Could we. Suddenly almost anything seems possible in South Africa. And that with more than two weeks to go before the start of the ANC conference. What ever will we see in the next weeks? I almost wish I was a voting delegate to the conference because it will be history in the making that one will experience at Polokwane.

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