The law, like the suburban American house, is designed to order a particular pattern of relationships, many of them oriented around the heterosexual nuclear family. For real people in contemporary circumstances to inhabit the house the law built, one has to find side doors and discreet corners, while the dominant space changes little and the façade remains unaltered. The two big L.G.B.T.-rights Supreme Court victories that came before Bostock—Windsor and Obergefell—did exactly that: they carved out a place for monogamous same-sex couples who want to marry (statistically, these are more apt to be white middle-class people like the plaintiffs) in the house of the American nuclear family.
I see the ANC in Parliament is suggesting that the NPA Act might have to be looked at to “clarify” the relationship between the executive (specifically the Minister of Justice) and the NPA, given the fact that the SCA differed from Judge Nicholson about the exact nature of this relationship (and Frene Ginwala’s quasi-judicial report again gave an entirely different – not surprisingly far more executive minded – interpretation of this relationship).
The argument is that there seems to be two “seemingly conflicting” provisions in section 179 of the Constitution. One says that national legislation must ensure the NPA exercises its functions “without fear, favour or prejudice”. The other provision says that the justice minister must exercise “final responsibility” over the NPA.
However, if one reads s 179 together with section 33 of the NPA Act, and if one reads these two provisions in the light of the Constitutional Court Certification judgment, which said section 179 guaranteed the independence of the NPA, there is really no conflict – unless one is Frene Ginwala and one needs to protect the Dear Leader. As the SCA has now confirmed, Nicholson and Ginwala both had it wrong.
The SCA judgment did what many of us have advocated, namely it reconciled the so called “conflict” between the two constitutional provisions in line with the approach in Namibia, saying “although the minister may not instruct the NPA to prosecute or to decline to prosecute or to terminate a prosecution, the minister is entitled to be kept informed”. Thus the appeal court seemed to limit “final responsibility” to information giving (when so requested by the Minister).
Given our system of precedent, the SCA interpretation is now authoritative, which means as a matter of law Ginwala’s report got it spectacularly wrong. We all know why this bright woman gave such a bizarre interpretation of the Constitution and the law – she had a political master to please and was clearly NOT independent and impartial when she drafted her report.
The SCA judgment therefore has some serious consequences for the President and for the National Assembly, who must decide whether to endorse the President’s recommendation to fire Vusi Pikoli. This is because in the light of the SCA judgment, the reasons given by President Kgalema Motlanthe for firing the head of the NPA is now confirmed to have been legally untenable. And as the courts and not the President or his legal advisors are tasked by the Constitution to interpret that text, Motlanthe does not have a leg to stand on.
Ginwala said the provision affording the justice minister “final responsibility” over the NPA meant more than “purely information passing” as it must be read in the light of the co-operative government provisions of cvhapter 3 of the Constitution. There should be “discussions” between the minister and prosecutions chief, and the minister could “bring to the consideration of the (national director of public prosecutions) such matters as government may find to be relevant in respect of such cases.”
She also suggested that the NPA head had a duty to take into account the claims made by the Minister or the President regarding “national security” before he made decisions to arrest or prosecute anyone – regardless of whether any solid proof had been provided by the President about how the so called national security would be affected. So according to Ginwala, Pikoli had a duty to obey the President when he claimed national security was at stake in the arrest of Jackie Selebi and he therefore had a duty NOT to arrest Selebi until the President said it was ok to do so.
This kind of logic followed by Ginwala and Motlanthe is an utter abomination and – if followed – would lead to a complete destruction of the independence of the NPA. I will give an example to show why.
Imagine the NPA head decided to arrest a friend and political ally of the President for murder. In order to protect his friend the President now tells the NPA boss not to arrest his friend because if he did, it would affect “national security”. He provides no proof of this, but instead tells the head of the NPA that if he arrested the President’s friend, the President would become so cross that he would have to surf the Internet again.
“You know what happened the last time I did that,” he would say, “I discovered HIV maybe does not cause Aids and 300 000 people died as a result and I became the laughingstock of the world, so you better stop this nonsense right now or our national security will be severely compromised!”
This interpretation is not compatible with a constitutional guarantee of prosecutorial independence as confirmed by the Constitutional Court and by the SCA. The Ginwala interpretation – on which Motlanthe relied to get rid of the man who wants to continue the prosecution of Jacob Zuma – is therefore a legal nonsense. This has now been confirmed by the SCA, so Ginwala really has egg all over her face while the President, well, he must be looking like an overcooked omlette.
That is why President Kgalema Motlanthe’s recommendation to fire Pikoli – based on this bizarre and legally untenable interpretation by Ginwala – is probably illegal and why an endorsement of this recommendation by the National Assembly is on very shaky legal ground.
As the SCA has now implicitly confirmed, section 33 makes clear that to enable the Minister to exercise his or her final responsibility over the NPA, the Minister may request information from the head of the NPA and this information can then be used to ensure that the Minister exercises final responsibility over the NPA by keeping him or her informed and allowing him or her to report on the work of the NPA without interfering with is constitutionally guaranteed independence of said NPA.
Sadly the ANC members of Parliament are probably not going to follow the law and the Constitution on this one. They are probably rather going to obey the legally untenable recommendation of the President. Hopefully Pikoli and his lawyers will then challenge this in court, where the law and not the whims of a party hack like Ginwala will hopefully be followed.
Then Pikoli can get his job back and the “political solution” for Jacob Zuma’s very serious legal troubles will disappear. At which point Gwede Mantashe will probably call the judges counter revolutionaries again and Julius Malema will string a paragraph or two together, blaming “dark forces”, a “conspiracy”, the CIA, and Father Christmas for this terrible persecution of Mr. Umshini wam, and warming that the Youth League will not rest before every last judge in South Africa is sent to an ANC Youth League piss up.
At which point all sane people in South Africa will die laughing.
UPDATE: A few hours after writing this, I read on New24 that – yes! – my friend Julius said the following:
Malema warned that “dark forces” were at work against Zuma and implied that the five judges of the SCA had been influenced in their judgment in favour of the NPA. “Judges can be spoken to by any other person, knowing the tendency of these ones who are against us. They [the ‘dark forces’] travel at night. They’ve got the potential to do anything… Courts must be above political games. They must not interfere.”
He added, however, that the ANCYL had “confidence in the courts but it doesn’t mean you can’t criticise”. Asked who the “dark forces” behind the so-called political conspiracy against Zuma were, Malema replied: “They have left the ANC. Those are the forces who are working on us. Those that have left this organisation.
“They were doing it from within. They failed. Then they left. They’re doing it form outside now because they think they can mobilise our people against this glorious movement and they are working with the imperialists, the former colonisers, to try and destabilise this country. It’s an agenda to destabilise liberation movements in Africa.”
Sadly no mention of Father Christmas……. And the Youth League piss up was also not mentioned. Ag, I just thought I had become all seeing and all knowing and for a moment I felt like Thabo Mbeki must feel every day. . . .BACK TO TOP