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 always nice when one is proven to be correct. After the Nicholson judgement, some readers of this Blog issued rather cataclysmic condemations of myself and others and suggested that we were stupid and uninformed for having predicted that section 179 of the Constitution (read with the relevant sections of the NPA Act) did not give Mr Zuma the right to make representations to the acting head of the NDPP before he was charged.
Now I see the SCA decision entirely agrees with the approach advocated by myself and others. Apologies from all those who impugned my integirty might be in order. But I am not holding my breath.
As the SCA pointed out (and as I have consistently argued) the power to review, set out in section 179 of the Constitution, can only be an ‘apex’ function. In other words, it can only be a function of the head of the NPA as head of the NPA. Section 179(5)(d) accordingly deals only with the review of a decision by the ‘relevant’ DPP – it does not include a reconsideration of the NDPP’s own decisions. The SCA then continued:
Mr Kemp also submitted that para (d) is an empowering provision, meaning that the NDPP’s power to review decisions derives solely from its terms. The corollary of his argument is that the consultation and representation requirement applies to decisions of the NDPP or else the NDPP would not be entitled to revisit his own prosecutorial decisions. In the light of the finding in the preceding paragraph thatthe provision is an ‘apex’ provision that deals with the control of the NDPP over the DPPs, the premise of the argument falls away.
As is clear from the structure of the Constitution, the underlying purpose of the provision in section 179(5)(d) is not to protect the accused or the complainant: it is to define the procedure for the exercise of the power of control of the NDPP. According to the SCA, it would be strange to find such an important right, which is not known in comparable jurisdictions or in our common law, in a chapter of the Constitution that deals basically with structures concerned with the administration of justice and not rights. The Bill of Rights deals in great detail with the rights of accused persons, and is silent about the right to be invited to make representations concerning prosecutorial decisions.
This section was therefore wrongly latched onto by Mr Zuma’s lawyers. If they thought his rights had been infringed, they should have relied on section 35 of the Constitution. But of course the rights in section 35 only comes into play once a person actually stands trial and the last thing Mr Zuma wants is ever to stand trial – so they had to clutch at straws like this to try and keep their client from facing the very serious and credible charges on which basis Schabir Shaik is already sitting in jail.
The judgment of the SCA represents a stunning victory for the NPA as it also vindicates the much maligned decision by the NPA to ask for a striking out of passages from Mr Zuma’s papers in which he mutters darkly about the political conspiracy, which Harms (for a full bench of judges from the SCA) calls “completely irrelevant”.
Most of the allegations were not only irrelevant but they were gratuitous and based on suspicion and not on fact. The excuse for including them was unconvincing especially in the light of the disavowal of any intention to rely on them. The prejudice to the NDPP was manifest. Instead of having a short and simple case, the matter not only ballooned but burst in the faces of many. There may well be reason to hold that many of the allegations were vexatious and scandalous but, once again, it is not necessary to do so for present purposes. An order on the scale of attorney and client is fully justified, especially since it is not the first occasion on which Mr Zuma has insisted on including such irrelevant allegations.
So, does the SCA judgment also represent a vindication of Thabo Mbeki? To some degree it does, because it found that the reasons for which he was fired – namely findings of a political conspiracy to prosecute Mr Zuma – was wrongly decided by Nicholson. Mbeki was therefore fired for reasons now rejected by the SCA.
At the same time the SCA – unlike cowboy Nicholson – is careful to point out that it does not have sufficient evidence to make a finding on a political conspiracy and in any event even if it did, this would not be relevant for the case brought by Mr Zuma. The judgment will thus be read by many as a rejection of the political conspiracy findings of Nicholson J – but such a finding is not made because the court said it was not proper for it to delve into these issues. We still do not know definitively whether such a conspiracy existed or not. If we follow the logic of Mr Zuma and his backers (“innocent until; proven guilty, remember!) we cannot find the NPA and Mbeki guilty of this conspiracy because they have not been found by a court of law to have engaged in such a conspiracy.
It will be interesting to see how the ANC and Mr Zuma react to the judgment. Are they now going to resurrect the rhetoric of counter-revolutionaries? Can they afford to do that with an election coming and COPE breathing down their necks? Given the fact that they embraced the Nicholson judgment and said much about their respect for the judiciary an attack on the SCA will come accross as the most callous and opportunistic kind of political move. Surely even the Gwede Matashe’s of the world are not stupid enough to throw away their last bit of credibility with the thinking population of South Africa? Now, Julius Malema on the other hand . . .
PS: This post was slightly edited. I am travelling in the USA and had to type it rather fast so there were many typos. Apologies.BACK TO TOP