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.
Michael Hulley, the attorney for Jacob Zuma, has consistently shown that he is brilliant at representing his client. I am saying this not so much because of the quality of the legal arguments produced by him and the team of lawyers for Zuma in the various cases, but because he has always shown a keen understanding that Zuma’s various legal battles form part of a larger political battle to ensure that Zuma becomes President next year.
My reading of his affidavit lodged with the Constitutional Court in response to Thabo Mbeki’s application to review and set aside some of the findings of Judge Nicholson, confirms this view. The first hundred paragraphs of his affidavit is thin on legal arguments, but quite rich in background detail and innuendo that might help to paint Thabo Mbeki as someone who has something to hide.
He argues, in effect, that Mbeki was the author of his own misfortune because he had consistently failed to intervene in the various Zuma applications, despite the fact that allegations of political interference were made in most of them. Hulley points out that the filing of the application in the Nicholson case was accompanied by a Rule 16A notice inviting submissions from any potential amicus curiae, inviting any party who wished to place material submissions relevant to the proceedings before the Court, to do so. He then points out:
Of course such a party would, if the factual contents of his affidavit were contentious, face a very real possibility that the matter would have to be dealt with on the basis of oral evidence…. The Applicant’s failure to provide the NDPP with countervailing evidence, or to join in the proceedings, was in contention, a deliberate one with knowledge that findings or reasoning which may in a general sense constitute adverse comment on Mr Mbeki or other persons in Government may result. Such conduct is completely in line with Mr Mbeki’s conduct in dealing with such matters in the past.
Mr Hulley is therefore suggesting that there might have been good reason for then President Mbeki not to intervene in this matter as he might have been required to give oral evidence and might have been “exposed to the risk of cross examination”. This argument is put forward to show that a party “cannot have the rights and benefits of a litigant by joining in at the appeal time and at the same time escape the risks of being a litigant from the start”.
The Applicant seeks a final order effectively expunging all references to him and a variety of other persons in the judgment on the basis that he (and presumably whoever may have been at risk of an unkind statement in that judgment) was not before the Court. He thus avoids the risk of all findings implicating him, the risk of having to adduce evidence and the risk of being challenged in respect of such evidence. The only relief (and I dispute the entitlement thereto) that makes any sense is then to set such findings aside and refer it back to the Court a quo, declaring Mr Mbeki a party to the proceedings and giving the First Respondent leave to supplement its papers concerning the issue of political interference.
The contention is, however, that the Applicant deliberately decided not to join the dispute between the parties and took the risk of adverse comments appearing as part of the reasoning in the judgment. The Applicant of course never took the risk of any order or judgment being made which operated against him or was binding on him.
This is quite a good legal point. But it also makes a subtle political point, namely that Mbeki might not have wanted to give evidence and be cross examined because he would have been exposed as a liar. It is never explicitly stated, yet the subtle suggestion is that President Mbeki has something to hide and therefore chose not to run the risk of being exposed as a less than honest man.
In responding to the specific arguments and submission made by Mbeki, Hulley points out several times that while Mbeki denied the truth of many of the inferences drawn by Nicholson, he fails to provide any evidence to back up his denials. In paragraph 131 he again says that Mbeki “evidently remains reluctant to place his version before the Court, despite the fact that it is he who has peculiar knowledge of the true facts”!
If I was Thabo Mbeki I would be quite incensed by this affidavit because it hints throughout that Mbeki is reluctant to provide evidence and is thus hiding something. What could he be hiding? Well, although it is never said, the implication is that he is hiding from the truth, which is that Mbeki did indeed interfere in the Zuma prosecution.
Throughout this affidavit one finds subtle perpetuation of the narrative that Mbeki is a deceitful man.
And then he in effect calls Mbeki’s bluff by saying that if these allegedly scandalous and vexatious allegations of political interference are untrue, Mbeki is of course perfectly entitled to sue Zuma for defamation. He also points out that Mbeki can complain to the JSC if he thinks that Nicholson acted in a way unbecoming of a judge.
This is an interesting point. Twice now – first regarding the allegation that Mbeki faciliated a R30 million bribe from an arms company for the ANC and Zuma and then regarding the allegations of political interference – Mbeki has had the option of lodging a defamation case. Strangely he has failed to do so in both cases. Unlike Zuma whose defamation lawyers have been busy indeed.
Perhaps this is merely an indication of Mbeki’s personality and view that he is above this kind of legal wrangling and far to important to get involved in legal squabbles. But perhaps Hulley might have a point because in a defamation case the plaintiff might be called to testify and who knows what will happen under cross-examination.BACK TO TOP