As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
Maybe Thabo Mbeki should get out more. If his answering affidavit in his Constitutional Court application of the Nicholson judgment is anything to go by, all that surfing on the Internet and living in the bubble created by the office of the Presidency was obviously not very good for him. A golden thread running to this answering affidavit is that Mr Mbeki really, really, was not aware of all the conspiracy talk from Mr Zuma and his lawyers or if he was, he thought that it was all just based on misguided reporting by the wicked media.
For example, in his affidavit, Roger Hulley, Mr Zuma’s lawyer argued that the then President must have been aware of the questions raised by Zuma and his lawyers about the “conspiracy” against Zuma and whether Mbeki and Mr Vusi Pikoli :
had discussed whether Mr Zuma was going to be prosecuted or not, whether the dismissal of Mr Zuma was fair, whether President Mbeki’s conduct put pressure on Mr Pikoli to prosecute Zuma, (designedly or otherwise) etc. In those proceedings, Mr Zuma thus implored the Prosecution to obtain statements or other clarification from President Mbeki who was described as a cardinal and essential witness in the matter and the criminal prosecution. The Prosecution effectively ignored this.
In response Mr Mbeki seems to suggest that he did not know about this and in as much as he read media reports in this regard, he thought they were false:
I respectfully submit that to the extent that certain media reports did come to my attention, I frankly did not believe that the First Respondent would have made the statements that the media were attributing to him, as he was fully aware of my views regarding the National Executive’s constitutional responsibility to the rule of law as expressed, inter alia, in the National Assembly at the joint sitting of Parliament on his release from his responsibilities as Deputy President. In fact, again as a member of the National Executive Committee (NEC) of the African National Congress (ANC), the First Respondent was aware of this….
Of the media reports that did come to my attention in whatever format, I did not believe that the First Respondent had made the vexatious allegations attributed to him. This is so because of the statements that the First respondent and I made jointly in this regard.
I suppose once a denialist, always a denialist.
The affidavit is also interesting for other reasons. First, what shines through this affidavit is that Mr Mbeki had a very different view of the constitutionally protected independence of the National Prosecuting Authority (NPA) than that set out in the Constitution, the NPA Act and by various judgments of the Constitutional Court and the High Courts.
While Mbeki accepts the “constitutional imperative that the prosecuting authority exercises its functions without fear favour or prejudice”, according to him there was a tension between this and the obligation of the President to ensure that where a national commissioner is investigated and stands to be arrested, an arrest “is executed in a manner that does not affect or compromise the national security of the Republic”.
This seems like a red herring to me as it is unclear how issuing an arrest warrant for the National Police Commissioner will affect national security. Where such a warrant is issued and the President is informed (not asked, as Mbeki seems to think is required) the President immediately may take steps to suspend the Police Commissioner and appoint an acting Commissioner. This should take a few minutes, so how national security comes into it is beyond me.
It is very clear from this affidavit that President Mbeki has failed to comprehend the requirements of prosecutorial independence and to this day believes a President’s constitutional obligations can somehow sometimes trump the need for the NPA to act absolutely without interference from the Presidency.
Second, the affidavit is interesting for what it does not deny and for the way in which denials are formulated. For example, Mbeki denies that Vusi Pikoli briefed him on the decision to charge Zuma “on my visit to Chile” and then states: “I deny that I travelled to Chile to decide on [Zuma’s] political future.” Mbeki does not deny that Pikoli briefed him in South Africa on Zuma’s case and then he denies something completely irrelevant, namely that he travelled to Chile to decide’s Zuma’s future.
Later on Mbeki denies that “the Government instructed Mr Mpshe on how to deal with certain matters in the prosecution of Mr Selebi” and that “Mr. Mpshe was instructed to undo some of the steps in the prosecution of Mr Selebi”. What Mbeki does not deny (because it would be a lie if he did), is that his office instructed Mr Mpshe on how to deal with the investigation of Mr Selebi, by instructing Mpshe (through legal advisor Mojanku Gumbi) to cancell the search warrants of Selebi’s office and the warrant issued for his arrest.
This is an artful denial worthy of a Bill Clinton (who once denied something by saying “it depends on what the definition of ‘is’ is”). The denial is ambiguous enough not to constitute a lie, but it leaves a completely wrong impression, namely that the Presidency did not interfere in the Selebi case. These people are obviously masters of parsing words and think they are very clever, but a careful reading of the affidavit leaves this reader with the impression of a man who loves to play with words, but is not necessarily a great lover of the truth.BACK TO TOP