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.
It is striking that National Director of Public Prosecutions (NDPP), advocate Mokothedi “Kokkie” Mpshe, (or whomever actually told him to make this decision and wrote the statement he delivered yesterday) never once mentioned section 179(5) of the Constitution when he tried to justify the dropping of charges against Jacob Zuma.
Section 179(5)(a) states – as I have previously mentioned – that the NDPP must determine a prosecutions policy with the concurrence of the minister of justice “which MUST be observed in the prosecution process”.
As I have pointed out, Mpshe quoted extensively from House of Lords precedent to conclude that where conduct of the NPA would be gravely wrong or show a gross neglect of the elementary principles of fairness it would be unconscionable to proceed with the trial. Problem is, the UK does not have a written Constitution and no section 179(5), so this precedent is rubbish – unless I have not checked and we have been re-colonised by Britain.
It is clear that where a person is charged but the purpose of charging a person was never to secure a conviction the case could not proceed. But what should happen in a case like this when the person was clearly charges with the purpose of securing a conviction but the timing might have been used also to secure a political purpose, namely to defeat Zuma at Polokwane?
I would contend this scenario would not allow the NPA legally to drop the charges. There are three reasons for this.
First, the prosecution policy, which binds the NPA when making such decisions, does not allow it. One could argue that the prosecution policy states that one of the factors to be taken into account when deciding not to charge someone even though the NPA believes there is a winnable case against him, is “[t]he need for individual and general deterrence, and the necessity of maintaining public confidence in the criminal justice system” and that the only way to restore confidence in the NPA after the abuse of power would be to drop charges.
This would be an absurd argument. The NPA is in big trouble now because of the perception that has taken hold that it did not treat all suspects the same, first giving special treatment to MR Zuma by not charging him when they should have, and then conspiring to time the charges to influence his chances of success at Polokwane. Dropping the charges furthers this perception instead of addressing it.
The only way the NPA could have acted to “maintain public confidence” in the criminal justice system would have been to demonstrate that despite these revelations it was going to prosecute Zuma without fear favour or prejudice and that they will not buckle under political pressure and will not drop charges against Mr Zuma merely because he is powerful and rich.
This is probably why the NPA never mentioned this aspect of the prosecution policy in its statement and that is also why the decision is probably ultra vires and can therefore be set aside.
Second, the policy guidelines makes clear that “public interest may demand that certain crimes should be prosecuted” regardless of any other factors. The Zuma case is clearly such a case. Mr Zuma is the most powerful politician in South Africa. He has now gotten off despite having a serious case to answer and probably being a crook.
This will send a signal to every petty state official – from a traffic cop to a nurse – that if one belongs to the ANC and has friends in high places one will never be charged with corruption no matter how strong the evidence. The outcome will be a gradual but steady slide into a corrupt state and the poor – who rely on the state for service delivery – will suffer. If there is one case where the public interest demands that charges proceed, this is it.
Third, the NPA statement fails to mention the legal document which was supposed to guide its decision in this matter, preferring to rely on irrelevant precedent from a foreign country. If one provides reason for a decision and that decision had to be exercised in terms of guidelines and the decision maker neglects to mention those guidelines, it would be difficult for a court not to conclude that the binding guidelines have not been adhered to.
I cannot understand why the NPA did not mention the prosecution guidelines and section 179(5(d). Surely lawyers vetted this statement knowing full well that the decision would be scrutinised? Either the NPA is even more incompetent and clueless than we have been brought to believe or it knew that the guidelines would not be of any help and thus failed to mention them.
(Whether any judge would be convinced of this argument remains to be seen, but that a more than plausible case exist is beyond doubt.)
Meanwhile I see Mr Zuma complains about people saying he has a cloud hanging over his head (is it perhaps time for Zapiro to enhance his cartoons with a cloud on top of the shower head?) arguing this is a figment of journalists’s imagination. Well, no, just read the statement of Advocate Mpshe where he says the NPA still thinks it has a winnable case against Mr Zuma. If that is not a cloud I really do not know what is.
Fact is, for as long as Mr Zuma lives we will wonder whether he would have been convicted of fraud and corruption – and rightly so. Nothing the ANC or Mr Zuma says can change this incontrovertable fact. They can shout and scream and complain, but a whole pack of lawyers, after considering the evidence believes they could succesfully prosecute Mr Zuma.
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