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.
It is a pity that Vusi Pikoli decided not to embarrass the government by going ahead with his case in which he was challenging the lawfulness of his suspension and eventual firing as head of the National Prosecuting Authority (NPA). Instead, after a marathon mediation process, Pikoli accepted a R7.5 million settlement in which the government admitted that Pikoli was “competent, somebody with integrity, and dutiful” – in other words that he was indeed a fit and proper person and should never have been fired – and that it respected the independence of the judiciary and the NPA.
This settlement to a large extent vindicates Pikoli and others who have maintained that he was fired on spurious grounds. Pikoli was obviously suspended by then President Thabo Mbeki because he failed to follow the unlawful instructions from then Minister of Justice Brigitte Mbandla, who took a few minutes out ohe her busy tea drinking schedule, to order him not to go ahead with the arrest of Jackie Selebi.
Mbeki and Mbandla – as became clear at the Ginwala Inquiry – had a strange view of the constitutional requirement that the NDPP must act without fear, favour or prejudice and wrongly thought that the government had the power to order the NDPP to conduct specific investigations and arrests in a particular manner – something forbidden by the Constitution and not authorised by the NPA Act.
Then President Motlanthe fired Pikoli because – as Pikoli made clear during his testimony in the Selebi trial – he was not willing to be party to the unlawful dropping of charges against Jacob Zuma. Unlike Mokothedi Mpshe, who was somehow “persuaded” to drop charges against Zuma despite believing that the state has a winnable case against our President, Pikoli had shown during the Selebi standoff with Mbeki that he is a man of principle.
We will now have to see if Mpshe will be “rewarded” for dropping the charges against the President by being appointed as the permanent head of the NPA or whether President Zuma will appoint one of his other friends to that position. If I was President Zuma I would think twice about appointing Mpshe because he stuffed up the dropping of the charges by plagarising an overturned Hong Kong decision and providing “reasons” for his decision that were so laughable and absent any legal reasoning that even Pinocchio would have been embarrassed to have been associated with the decision.
On the other hand, the case challenging this seemingly unlawful decision by Mpshe is still going ahead, so President Zuma has a vested interest in keeping Mpshe on board and happy and not to upset the man who has done him this very big favour. If Mpshe is not appointed and he throws his toys out of the cot and reveals what happened during the dropping of the charges, it might just reflects very badly on our President, Hulley and others who was party to this obvious political deal, which had very little to do with the law.
But Mpshe does not seem like a strong-willed man who would ever make any waves, so it might well be that President Zuma will decide not appoint Mpshe but will rather appoint a trusted ally to the position of the NDPP. After all, he will have to be on the safe side in case the challenge to the dropping of charges is successful. Zuma would then need a trusted friend as head of the NDPP to ensure that the charges are made to go away once again.
There is one thing we all know and that that Zuma cannot afford to go to court because there is a wealth of evidence amassed against him and if he has to stand trial it will ruin his reputation. There is also a strong likelihood that he will be convicted and it would be rather awakward to have a President convicted of fraud and corruption. (Even those who claim that there was some kind of a conspiracy against Zuma knows deep down that our President took money from a crook, did favours for that crook and then lied about it – that is why they have to shout so loudly about the conspiracy in order to take our minds off the elephant in the room.)
Of course we are all feeling a bit awkward to talk about this simple but rather inconvenient fact as Jacob Zuma is now our President and many of us sort of like him (even if he seems indecisive and weak and not the sharpest tool in the shed – compared to Mbeki, at least). It’s a bit like dealing with that alcoholic aunt or that brother in jail: we remember them fondly at family events, but we studiously avoid mentioning THAT.
After all, we feel somehow implicated because it is our family and we are justifying their destructive or illegal behaviour by our support. So better not talk about it in case we have to confront our own complicity in the family scandal.BACK TO TOP