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.
Helen Zille seems to think that the election of Jacob Zuma as President by the National Assembly after the next election may be unconstitutional. In an open letter to Mr Jacob Zuma that has been widely circulated she writes:
If you were to be elected President by the National Assembly without having been exonerated of the charges against you in a court of law, that would seriously undermine the Constitution. In fact, I have been reliably informed by senior members of the bar that your election could be challenged in the Constitutional Court. That is because your presidency would create a conflict of interest between your constitutional role as Head of State and your status as an accused in a matter that has been brought against you by the state itself. Until such time as you are cleared in a court of law, it is impossible for you to serve your country as its President with any hope of being able to discharge the obligations and responsibilities that all of our presidents have to undertake in terms of the Constitution…..
Your trial must go ahead. Once the criminal proceedings are finally over, you can re-enter the world of politics, unless any sentence imposed precludes you from doing so. However, until then, you are trying to play for both sides at the same time. You can’t. Nobody can. It’s illegal and irrational. Any vote in Parliament in favour of your election as President is open to legal challenge on the basis that it would be invalid for want of consistency with the Constitution.
Well, this is an interesting argument, but I don´t see it fly in the Constitutional Court. I also think it is the kind of argument that is irresponsible to make because it potentially passes a political issue to the courts to decide, thereby placing them in an untenable position. This is dangerous for the health of our Constitution.
Of course Zille is correct: it is untenable that a sitting President should spend months in court defending very serious charges of corruption and fraud against him, while that same President is also charged by the Constitution to uphold the law and the Constitution – and has the power to appoint the head of the National Director of Public Prosecutions (NDPP) who will be in charge of the case against him, for goodness sake.
An argument could even be made that it would be irrational for the ANC majority in Parliament to elect Jacob Zuma as President of South Africa. Well – duhhhh! – of course it is, on one level, irrational, but on a political level he was elected President of the ANC by the 4000 delegates at Polokwane because the other guy seemed even worse, and an unelected court of law will be extremely reluctant to interfere in such a political choice – no matter how stupid and dangerous it might be or seem to be for us in the chattering classes.
There are good reasons for this: judges are unelected and only gain their power and legitimacy from the consent of the people. If a majority of the electorate was stupid enough to vote for Jacob Zuma as President, it would be dangerous and undemocratic for a court of law to overturn the wishes of the majority as it would potentially fatally undermine the legitimacy of the courts. We should not always run to the courts to fix the political problems we have. What is required is to toyi-toyi in the streets, to organise and mobilise support and eventually to defeat the self-serving crooks and charlatans at the voting booth – something Ms Zille has no chance of doing.
This is not easy – especially in a country like South Africa where the ANC-controlled SABC media has a virtual monopoly on the non-elite media market, and the ANC will still get a post-uhuru sympathy vote (a bit like voting for the actor who played a disabled person or a moffie for the best acting Oscar). It is lazy and dangerous always to want to run to the courts when one cannot win the political argument. In time South Africans will wake up and will realise what a disasterous choice they made by putting this man into power – that is how democracy works. Meanwhile we will just have to suffer the folly that is Jacob Zuma.
On the other hand, I see the ANC’s lawyer, Asif Latib, says the party made the case in written submissions to the NPA on Friday that Zuma’s continued prosecution would not be in the “public interest”. This is a sound legal strategy as the prosecutorial guidelines state that the NPA must only prosecute when it will be in the public interest.
But sadly, then the ANC lawyer pulls a Bhutulezi, stating that it would not be in the public interest to prosecute Zuma because there might be violence in the country and the economy might suffer, I am shocked. This comes perilously close to a threat of violence – the kind of thing Mangosutu Bhutelezi did so well before the 1994 election. The answer to this is of course: if the ANC fears violence and a tanking of the Rand if Zuma is charged, why not get another Presidential candidate instead. There are many other good candidates to choose from who do not face the possibility of a 15 year prison sentence.
Really, it is unconsciounable that the ANC would hold up the threat of violenece as a reason not to charge Zuma. We have a democracy now and the ANC is in government, but in effect they are saying their supporters might make the country ungovernable if Zuma is charged. This is logic of the most perverse kind.
What is in the public interest – but only the ANC can do the right thing, which they will not – is to ask Mr Zuma to step aside until his case has been completed and for Kgalema Motlanthe to be elected President in the mean time. Sadly the ANC stopped acting in the public interest around the time it all (including Jacob Zuma!) kept quiet while then President Thabo Mbeki started questioning the link between HIV and AIDS. A few hundred tousand deaths of poor black people later, are we surprised that they do not want to act in the interest of South Africa.
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