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 President Thabo Mbeki is supposedly not a fan of plea bargains. His lieutenants argued at the Ginwala Inquiry that one of the reasons for firing Vusi Pikoli was the fact that he did not prevent the NPA from concluding plea bargains with people implicating Police Commissioner Jackie Selebi in all kinds of criminal activities.
If our President changes his mind on plea bargains, he could help to implement the rather provocative idea floated by journalist Max du Preez over the weekend. Du Preez argued in a acceptance speech for the Nat Nakasa award and in an article published in Die Burger that in order to save South Africa’s democracy from Thabo Mbeki’s shenanigans and the storm troops now massing for Jacob Zuma, Mr Zuma could enter a plea bargain with the state and pay a fine or get a suspended sentence. This would allow him to become the next President of South Africa and he could then begin to distance himself from the scumbags like Julius Malema, something he would be able to do then because he would not need them anymore to stay out of jail and become President.
Du Preez argues that while it would be untenable to drop the case against Mr Zuma at this late stage because it would completely undermine respect for the Rule of Law, a plea bargain could be used as a compromise to save South Africa from the real “forces of darkness” (hint: Julius, John, Paul are you there?). What is the use of sticking to high principles when the whole country is on a collision course to total implosion? This plea bargain could be coupled with a strong statement by Mr Zuma against corruption and a public apology – much like the apology he offered South Africa after his rape trial – to prevent a signal being sent to all the petty ANC crooks waiting in the wings that it would be ok to take money from criminals or act in a corrupt manner.
I must say I am feeling conflicted about this idea. If such a deal is struck would it not mean that the system had in effect collapsed under the weight of the onslaught on the Constitution by the rabble-rousers and self-styled illiterate “revolutionaries” like Julius Malema? What would such a deal say about the constitutional principle that all should be equal before the law and that no-one – not even a popular leader of the strongest political party – should be above the law?
But maybe in a refined form I could support Du Preez’s proposal. By all means, let Mr Zuma and the NPA cut a deal and let him enter into a plea bargain. But then such a plea bargain – which in any case must be approved by a court – must include a full admission of guilt on the part of Zuma and the imposition of a heavy punishment. The NPA could push for a jail term of 8 to 10 years without the option of a fine.
This is where President Mbeki comes in. As part of the “political solution” that can then run alongside the “legal solution”, the President must then agree to pardon Mr Zuma in terms of section 84(2) of the Constitution. The Minister of Justice could be awoken from her prolonged slumber to process this pardon before the next election and Mr Zuma can then stand as the ANC candidate for that election.
It would then be up to us voters to decide whether we want the ANC – led by a self-confessed criminal – to rule South Africa. I know I would find it rather difficult to put my cross next to this kind of political party, but if Mr Zuma’s party obtains a majority at the polls, the rest of us good democrats will have to abide by this and move on to solving the real problems of South Africa – poverty, unemployment, homelessness, crime, racism, instilling the constitutional values of equality, dignity and freedom, and strengthening our democracy.
In a best case scenario South Africa’s voters would act in a mature manner and would dessert the ANC to vote for opposition parties. (Maybe I will vote for the African Muslim Party – I think some of their representatives are rather handsome!) At worst, voters would act like they do in many other countries (Italy, USA) and stick with the crooks. But our system would have been saved and those who pose the greatest threat to our democracy would have been sidelined.
Just a thought. But worth debating. What are the alternatives?BACK TO TOP