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.
Mr Jacob Zuma will formally be elected President by the National Assembly on 6 May after being sworn in as an member of Parliament. Luckily for him, section 87 of the Constitution states that once elected President he will cease to be a member of the National Assembly. This means that he will only be a member of the National Assembly for a few hours.
And a good thing for him too.
As Deputy President Mr Zuma was a member of the National Assembly and because of the evidence tendered in the Schabir Shaik case, Parliament’s ethics committee was asked to investigate him. He had received millions of Rands from Schabir Shaik but had not declared this to Parliament as he was legally obliged to do. He claimed that the money – which on his salary he would never have been able to pay back – was a loan.
At the time the ethics committee kicked for touch and said it would wait for the outcome of the Shaik case before considering the complaint that Mr Zuma had breached the ethics rules of Parliament (and – like Tony Yengeni – had broken the law by defrauding Parliament).
When President Thabo Mbeki fired Mr Zuma as Deputy President (but not as a member of Parliament) Mr Zuma actually voluntarily resigned from the National Assembly. Many people were surprised by this as Mr Zuma had refused to resign as Deputy President, arguing that it would have amounted to an admission of guilt on his part if he had resigned. Why then resign as a MP? Would that not also constitute an admission of guilt?
But Zuma had a very good reason to resign. In the Shaik judgment Judge Squires found that the money paid to Zuma by Shaik was not a loan and that the “loan agreement” provided to the court was a sham. On the basis of this finding it would have been very difficult for the ethics committee not to find that Mr Zuma had breached the parliamentary rules of ethics and that he had indeed defrauded Parliament. He therefore had no choice but to resign his seat. Otherwise he would have had to face an embarrasing and damning censure from Parliament.
It was not remarked upon at the time, but according to Mr Zuma’s own logic, this seemed like an admission of guilt on his part regarding the defrauding of Parliament. Why else resign his seat in the National Assembly?
Could members of Parliament raise this issue once Mr Zuma is sworn in and before he is elected? They could try to make a point and could raise this before the election of the new President, but the new Speaker will be able to ensure that Mr Zuma is elected President before this matter could be dealt with by Parliament.
Section 86 of the Constitution states that:
At its first sitting after its election, and whenever necessary to fill a vacancy, the National Assembly must elect a woman or a man from among its members to be the President.
The Speaker would be able to point to this section to justify a ruling that Mr Zuma must first be elected President before Parliament considers any other matter – including the alleged breaches of the Parliamentary code of conduct by Mr Zuma. And once elected, he will not be an MP anymore and Parliament will not be able to investigate him for breaching the code of ethics.
Mr Houdini would have survived once again.
Several court judgments have confirmed that the money given to Mr Zuma by Shaik was not a loan. We also know that Mr Zuma had not declared this money to Parliament. So, on the basis of these judgments, it is difficult not to conclude that Mr Zuma had defrauded Parliament. In the glow of post-election goodwill, it might be a bit awkward to point this out, but it would be nice if Mr Zuma could give a detailed explanation about this small little matter.
Who knows, in the spirit of forgiveness, some of us would even be persuaded by such an explanation that Mr Zuma did not defraud Parliament and that the Shaik judgement got it all wrong. But unless he explains himself, it would be difficult not to conclude that when Mr Zuma resigned his seat he was in effect admitting guilt in this matter.BACK TO TOP