The recommendation for criminal charges is particularly applicable to Mr Anoj Singh and Mr Koko, who by false pretences led Eskom, through the officials who processed the R659 million payment, to believe that the R659 million payment was in the nature of pre-payment for coal, as was the R1.68 billion pre-payment, later converted into a guarantee, when in truth and fact they knew that the prepayment and the guarantee were needed to enable the Guptas to complete and save the sale of share transaction.
It is true that the Constitutional Court can only hear cases raising constitutional matters or “issues connected with decisions on constitutional matters”. But since the Pharmaceutical case it is clear that almost any case can be fashioned into a constitutional case. Section 39(2), which requires courts when interpreting legislation or developing the common law to promote the spirit, purport and objects of the Bill of Rights, also provide much scope for innovative lawyers to take cases to Braamfontein.
But fear and loathing (and perhaps some ignorance) of the Constitution have prevented many lawyers from making the jurisdictional arguments to give their clients another shot at victory.
Perhaps all that is beginning to change. Recently it seems as if some lawyers are beginning to realise that the Constitution has now become the overarching framework within which to do legal business.
For example, in the case of Mohunram and Another v National Director of Public Prosecutions and Another being argued at the CC today, applicants make use of s 39(2) to argue that the application of the Prevention of Organised Crime Act to a specific set of facts is a Constitutional matter because it implicates the right to property.
Next Tuesday in the case of Van der Merwe v Taylor lawyers will argue that they should be granted leave to appeal to the CC despite having been refused leave to appeal to SCA because the rule of law requires it. This is because different lower courts gave different judgments on the same issue and the Constitutional Court has said that precedent is a Rule of Law – hence Constitutional – issue. In effect they are going to argue that where different lower courts give contradictory judgments the Rule of Law requires the CC to clear things up to provide legal certainty.
A long shot, yes, but interesting and innovative reasoning.
The problem is that the CC jurisprudence on jurisdiction is not coherent or predictable. Perhaps if more “peripheral” cases come to them, they will be forced to think these issues through and will have to produce some guidelines to help lawyers decide whether it is worth a shot to appeal to the CC.