Quote of the week

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.

Khampepe J
Zuma v Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector Including Organs of State and Others (CCT 52/21) [2021] ZACC 28 (17 September 2021)
18 March 2009

The crazies are running the asylum

Several newspapers, including Business Day, report this morning that the National Prosecuting Authority (NPA) will drop all charges against Mr Jacob Zuma because it has no winnable case against him. This could just be a leak by the Zuma side to put pressure on the NPA, but I have a funny feeling that the reports might just be accurate.

What does this mean for South Africa, for our Constitution and for respect for the Rule of Law?

I must say, like most reasonable people I am rather skeptical about the motivation for this decision. If the reporting is correct, it is very difficult not to conclude that this was a political and not a legal decision. The game is given away in Business Day where it is reported that the NPA spoke to religious leaders, business leaders as well as taxi associations.

Huh? What do taxi associations have to do with a decision on whether the NPA has a winnable case against Mr Zuma? Unless of course this decision was not a legal decision but a political decision.

And as far as business leaders – those highly principled fat cats who first supported apartheid before jumping ship to the ANC when it could make more money that way – are concerned, I would not trust them further than my nose is long.

The NPA has a lot of explaining to do and its credibility will be completely shot if these reports are correct. It would mean either that they had pursued a non-winnable case against Mr Zuma for all these years (which seems rather unlikely, given the fact that Schabir Shaik was indeed convicted on charges of fraud and corruption and the original investigators recommended that Mr Zuma be charged with Shaik), or that they had now decided to withdraw the charges against Mr Zuma because he is a powerful man.

This would suggest that the NPA does not believe in the Rule of Law and equality before the law and that in South Africa we are all equal but, like in George Orwell’s Animal Farm, some are more equal than others. If one is a powerful man, a man with money, one need not face the full might of the law even when one has done spectacularly stupid and probably criminal things. There is one set of rules for the leaders and another for us poor gits who pay their salaries.

Questions abound. Who made this decision? Was there any contact between ANC officials and the person(s) who made this decision and was any political pressure brought to bear on the NPA?

Meanwhile, if these reports are true, Mr Zuma will never get his day in court. This means we will never know if our President is a crook or not. Many of us – relying on the Shaik judgment – will have a strong suspicion that he is a crook, although we will not know for certain.

This means that if the NPA decision is true, it does not lift the cloud hanging over Mr Zuma’s head. It gets rid of the legal problems, but the ethical questions will remain. Every time we see our President on stage, dancing and singing and calling for his machine gun, many of us will wonder whether he did not trade in the machine gun for some money and favours on the black market. We will wonder who else has given him money and what other favours he has done for those who had given him money? We will wonder about Swiss bank accounts and government tenders.

No, this decision will not clear Mr Zuma’s name. We will forever wonder about whether he is a criminal or not. And that is a pity because, as I discovered when I was in the USA during Barack Obama’s inauguration, it is  quite nice to respect ones President and to trust him.

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