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.
After President John F Kennedy was assassinated, Malcolm X famously said that the assassination was a case of the “chickens coming home to roost,” adding that “chickens coming home to roost never did make me sad; they’ve always made me glad.” In other words, he was implying that since the white man had used violence so often and so easily in America (especially against black Americans), it was just cosmic balance that the President would become a victim of violence.
Well, the chickens are coming home to roost big time with regard to the on-going political manipulation and abuse of the National Prosecuting Authority (NPA) by various political factions within the ANC. When a perception takes hold that the NPA will prosecute some and avoid prosecuting others solely on the basis of their political connections or on the basis of whether they belong to the faction associated with the incumbent President or not, the credibility of that institution is fatally compromised.
When newspapers then report allegations of flagrant political interference in decisions to prosecute politically connected politicians (as the Mail & Guardian again did on Friday), few well-informed people will read such reports with scepticism. After all, we know that the NPA has often made decisions in the past based on political rather on legal considerations (including in the case relating to the prosecution of President Zuma and then later, the dropping of charges against President Zuma).
It was exactly to prevent this sorry state of affairs, that the drafters of our Constitution included a provision in section 179(4) of the Constitution which states that: “National legislation must ensure that the prosecuting authority exercises its functions without fear, favour or prejudice”. Of course, politicians, including then President Thabo Mbeki and now President Jacob Zuma, do not like to focus on this section of the Constitution, instead pointing to section 179(6) of the Constitution to justify direct interference in the decisions of the NPA. This section states that: “The cabinet member responsible for the administration of justice must exercise final responsibility over the prosecuting authority”.
What the politicians choose to ignore is the following.
The Constitutional Court, in the First Certification Judgment, confirmed that despite this strange provision about the Minister having to exercise final responsibility for the NPA, the Constitution created an independent body in the following terms:
[Section] 179(4) provides that the national legislation must ensure that the prosecuting authority exercises its functions without fear, favour or prejudice. There is accordingly a constitutional guarantee of independence, and any legislation or executive action inconsistent therewith would be subject to constitutional control by the courts.
The politicians also conveniently ignore the judgment of the Supreme Court of Appeal (SCA), in which it dealt with the need for the NPA to be independent while also taking cognisance of the need for the Minister to take final responsibility for the NPA in the following terms:
[T]he Constitution on the one hand vests the prosecutorial responsibility in the NPA while, on the other, it provides that the Minister must exercise final responsibility over it. These provisions may appear to conflict but, as the Namibian Supreme Court held in relation to comparable provisions in its Constitution, they are not incompatible. It held (I am using terms that conform with our Constitution) that although the Minister may not instruct the NPA to prosecute or to decline to prosecute or to terminate a pending prosecution, the Minister is entitled to be kept informed in respect of all prosecutions initiated or to be initiated which might arouse public interest or involve important aspects of legal or prosecutorial authority.
That is why the NPA Act requires members of the prosecuting authority to serve “impartially” and exercise, carry out or perform their powers, duties and functions “in good faith and without fear, favour or prejudice” and subject only to the Constitution and the law. The Act further provides that no one may interfere “improperly” with the NPA in the performance of its duties and functions (in section 32(1)(b) of the Act).
The Act confirms that the manner in which the Minister exercises final responsibility over the NPA is by obliging the NDPP, at the request of the Minister, to furnish the latter with information or a report with regard to any case and to provide the Minister with reasons for any decision taken. The Minister can ask for information, but cannot give any instructions or make any requests regarding the prosecution or non-prosecution of anybody (unless, of course, the Minister is intent on committing a criminal offence by “improperly” trying to influence the NPA).
Of course, problems around political interference in the work of the NPA and the corrupt influence of political loyalties on NPA decisions arise not only when the Minister tries to issue illegal and criminal instructions to the NPA (as former Minister Bridget Mbandla did when she sent a letter – drafted by Menzi Simelane – to former head of the NPA, Vusi Pikoli to stop the arrest of a crook who also happened to be the Police Commissioner ), but also when members in leadership positions inside the NPA stop acting in good faith and instead make decisions based purely on their own political loyalties and self-interest.
When they are willing to do the bidding of their political masters without being instructed to do so, or when they improperly follow the hints or instructions of the Minister or other member of the relevant political faction inside the ANC, they destroy the credibility of the NPA and directly undermine the Rule of Law by creating a situation in which some criminals are above the law because of the political protection they enjoy.
The allegations in the Mail & Guardian regarding the interference in the “Three Amigo’s” case as well as the allegations tha5t the disciplinary charges were brought against prosecutor Glynnis Breytenbach for what appears to be her rather enthusiastic pursuit of the company owned by President Zuma’s financial benefactors, the Gupta’s, or because of her pursuit of that bastion of probity and honesty, Richard Mdluli, illustrate the dangers of the political “capturing of the NPA rather well.
Even if all these allegations are false, given the past abuse of the NPA many people will think them credible or even true. They will think it is true because the chickens have truly come home to roost for the politically much abused and subverted NPA. Who on earth is ever going to believe the protestations of the NPA that there is no political interference when there is such strong proof of on-going political interference at the NPA? I know, I won’t.
It is ironic that President Zuma, who complained bitterly about the abuse of the NPA by the Thabo Mbeki faction when he was facing corruption charges has overseen the further erosion of trust in this institution. I guess it was bad when the other guys were doing it, but now that he is in charge the principles are slightly different to suite the politics. But I guess he will only realise how the chickens have ccome home to roost if he loses his bid for another term as ANC and South African President and again faces the possibility of having to explain to a judge why he took a bribe from Schabir Shaik.BACK TO TOP