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.
What now for Mr Zuma’s legal troubles? Will he be charged, if so how long before an acquittal or conviction can be expected? The acting (air)head of the National Prosecuting Authority (NPA), Mokotedi Mpshe, speaking on 702 after the election of Mr Jacob Zuma as President of the ANC, said of the investigation against Mr Zuma that it was complete:
“All that we are doing is tying the loose ends. The investigation with the evidence we have now points to a case that can be taken to court.” Asked if prosecution was imminent, he said: “I should say so.”
In all but name he therefore announced that Mr Zuma will be recharged early in the new year with corruption, fraud and tax evasion. For those who suspect that the Scorpions have been used by President Thabo Mbeki and his lackeys to try and stop Zuma from becoming President of the ANC and the country, these remarks would merely add to their suspicions, especially if contrasted with Mr Mpshe’s failure to say anything about the possible charges against Police Commissioner Jackie Selebi.
Since the suspension of Mr Vusi Pikoli as NPA head after he issued a warrant of arrest for Mr Selebi, it has been obvious that to all reasonable people that the President of the country has been abusing his power to protect Selebi, while at the same time claiming that he has no influence on the NPA and their decision to charge Zuma. No wonder he lost in Polokwane.
Mpshe’s spectacularly unwise comments seems to confirm for even the less suspicious among us that the acting head of the NPA was doing the bidding of President Mbeki by making this semi-announcement to pre-empt any political pressure to drop the charges. This is bad for the credibility of the NPA and for the judicial system as a whole. It is worse because every time Mpshe is interviewed on radio or TV he seems to confirm that he is not the sharpest tool in the shed and that he is completely under the thumb of his political master in the Presidency. Can’t somebody advise him to just say nothing and keep his mouth shut?
To me it also seems strange to charge Mr Zuma early in the new year before the finalisation of the Constitutional Court case in which Mr Zuma and others are challenging the validity of search warrants that uncovered new information to strengthen the charges against Mr Zuma? It seems a high risk strategy because if the NPA were to lose in the Constitutional Court, their case would once again be in disarray.
In any case, even if Mr Zuma is charged he has indicated that he will immediately bring an application to have the charges dismissed because of an infringement of his right to a fair trial as guaranteed in section 35 of the Constitution. He will argue that because of the long time period between the initial declaration that there was a prima facie case against him, until charges were finally brought , no court could possible give him a fair trial. I suspect this application will not be successful.
In the Schabir Shauik appeal the Constitutional Court, while affirming that the right to a fair trial was a substantive right that went beyond the rights specifically enumerated in section 35(3) of the Constitution, it nevertheless implicitly rebuked the “Stalingrad” legal strategy employed by Mr. Jacob Zuma’s lawyers by stating that:
It is also clear that fairness is not a one-way street conferring an unlimited right on an accused to demand the most favourable possible treatment. A fair trial also requires: “fairness to the public as represented by the State. It has to instil confidence in the criminal justice system with the public, including those close to the accused, as well as those distressed by the audacity and horror of crime.”
This seems to suggest that the Court will not easily entertain technical complaints masquerading as high constitutional principle and that the accused would have to show that he or she was really fundamentally prejudiced by the actions of the state before there would be any chance of declaring a trial unfair and unconstitutional. In the past the Court has show a high degree of trust in judges to empty their minds of all the preceding issues and judge a case anew, and this means that a court will be extremely reluctant to say that no court could possibly give Mr Zuma a fair trial as it would suggest a lack of trust in the judiciary as a whole.
If Mr Zuma pursues this line of attack and appeals all the way to the Constitutional Court, we could already be in 2009 before the matter is finalised and the real trial can start. Mr Zuma and his lawyers are obviously playing for time and hope that by the time the NPA is finally ready to start the trial, he will already be elected President and the political pressure to stop the trial will be immense.
If this strategy is successful, and if Mr Zuma is nominated by the list conference next year to be the President of the country, everything will depend, first, on whether the NPA will be able to resist the political pressure and, second, on how the new NEC deals with the matter. If the NEC decides that it would be untenable for a sitting President to be charged, they can ask Mr Zuma to stand back and get Mr Kgalema Motlante to become the new President. If they decide to have a turf war with the NPA and the judiciary, well, all bets are off.
Whatever happens, we are entering precarious times for the Rule of Law and for the institutions that must uphold the Constitution. No wonder some lawyers are arguing that it would be better not to charge Zuma because to charge him could destroy the judiciary. Those of us who believe in the Constitution will hold our breaths.
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