There is understandably much debate about the prosecution of Julius Malema. It was raised by Eusebius McKaiser, on his radio program last night, and not really answered clearly.
The Malema camp is claiming that he is innocent and simply being victimised in terms of a political agenda. As claimed by expelled ANC Youth League (ANCYL) secretary-general, Sindiso Magaqa, "State machinery is being used to settle political scores". He claims that that this is so is "obvious".
At this stage it is simply impossible to know whether or not he is right. This is because the EVIDENCE on which the State is basing its case against Malema has not as yet been led.
And that is the key -- EVIDENCE. Everything hinges on this! If there is evidence of criminal conduct the State is obliged/compelled to act. It is as simple as that. The fact that it may be politically convenient to act is irrelevant. The fact that it may be in the interests of Malema's political enemies is irrelevant. If there is evidence of criminal conduct the Police and the National Prosecuting Authority (NPA) have no option. They have to prosecute. This is so in terms of a duty imposed under our Constitution.
In simple terms the Constitution provides for a Police force, the NPA and the Judiciary; and imposes a duty on these State institutions to protect the State and humanity from criminal conduct, without "fear, favour or prejudice". Motive is simply irrelevant. Criminal conduct = prosecution!
So what is criminal conduct? This is any conduct that is in breach of the statutory (written) and common laws of our country.
At what point must the State agents act? The test, established over centuries of jurisprudence, is that the State must act/prosecute once there is a prima facie case of criminal conduct. Prima facie simply means facts and circumstances which, if unanswered, might lead to a Court convicting the person involved in such conduct. So if a witness swears on oath that he saw you shooting a pedestrian, and there is no other evidence contradicting this, the State must prosecute. This is because if the witness gives this evidence in Court the Court may well believe him/her and convict you. It really does not matter that the witness is a member of an opposing political party and admits that he hates you. His membership of such party and admitted hatred will be a basis for disputing his credibility and reliability IN COURT if, and when, you decide to please NOT GUILTY and fight the case against you in Court. So, until you dispute his evidence, there is a prima facie case against you and the State has to act on it.
We have also heard the NPA talking about having a "winnable" case. What is meant by this is that the State will not act even if there is EVIDENCE against you but there is also other evidence that makes this evidence so weak that the State comes to the conclusion that a Court WILL NOT convict you.
So in our shooting example the State will not prosecute if there is another reliable witness that says that shooter was not you but actually your hateful neighbour. The situation would be same if you also make a sworn statement in which you dispute your neighbor’s accusations, pointing out that he/she is a member of an opposing political party and that there is hatred involved. Then it becomes a case of what is often called “he said, she said” without a reliable way of knowing who is telling the truth. There are in fact countless ways in which the State may come to the conclusion that it does not have a “winnable” case. Glee and joy on the part of your enemies is not one of them.
However, it is very important to understand that where the State has a prima facie case and it is unable to conclude that its case is NOT WINNABLE it has no option. IT MUST PROSECUTE in accordance with a sacred duty, under our Constitution, to protect the Sate and humanity.
And the reason for this is that a) we are all EQUAL UNDER THE LAW, and b) NO ONE IS ABOVE THE LAW.
So let us change the facts a little bit. Let us say that current ANC leadership issued a statement saying that Malema is very bad and needs to be “got rid of”. However, let us say that Malema is then seen by a priest and three (3) nuns shooting a child in cold blood. In this example we can quite easily see that the Police and NPA MUST prosecute even though there is an admitted desire that he be got “rid off”.
So, as stated, everything depends on whether or not the State has EVIDENCE of criminal conduct. If there is such evidence it really does not matter that the Police and NPA also conclude that there is a political agenda against him and that it would be politically convenient that he be jailed. Such bad political motives can be raised in Court and the Court will weigh them up to see if they weaken the case against him to the extent of either destroying such case or weakening it to the extent that there is “reasonable doubt”.
So the situation is this. Even if the Court finds that there is the most pernicious political motive behind a prosecution of Malema, and that his enemies would like to see him rot in jail, it has no option whatsoever but to convict him if it finds that there is proof beyond a reasonable doubt of criminal conduct.
As regards charges of fraud that Malema is facing the State either has the hard evidence or it does not. It either has the evidence of a “money trail” involving crooked dealing or it does not. He either unlawfully abused his Ratanang Trust or he did not. In each case there EVIDENCE will be there or it will not be there --- WHATEVER HIS POLITICAL ENEMIES MAY THINK OR WISH.
The problem is that the sacred constitutional principle that a) we are all EQUAL UNDER THE LAW, and b) NO ONE IS ABOVE THE LAW was put into disrepute when the NPA made the decision not to prosecute Jacob Zuma even though the evidence against him must have been as strong as the evidence it had against Shabir Shaik. Mokotedi Mpshe's justification for dropping the charge against Jacob Zuma was that the decision to prosecute had been tainted by bad motives on the part of senior members of the NPA. In law Mokotedi acted in a somewhat novel way. It was unprecedented. It appears badly flawed even though his reasoning cannot be rejected outright. Until it is further examined and decided in Court it remains highly problematical. This testing may well still occur if, and when, the DA makes an application to Court to have the prosecution of Jacob Zuma reinstated.
This country has a very serious crime problem. It is one of the most anomic countries in the World. Our citizens are suffering terribly on account of criminality on all fronts. This includes predatory and rapacious fraud on the part of leaders. It is an imperative that our State agencies act, and act without fear, favour or prejudice.
So what we should be more concerned with is whether or not the State has EVIDENCE OF CRIMINAL conduct on the part of Malema, NOT whether or not his enemies would like to see him in jail. We should be concerned that he is dealt with as everyone else is dealt with … as an equal under the law. If we are going to be obsessed with the whims, wishes and foibles of our politicians we will be supporting a system where some soon become “more equal than others” because they are politicians, and are always able to show that there are political enemies who would like to see them in jail.
Let us remember that Lady Justice is blind to who appears before her. All are equal. She does not see who is a politician and who is not. She simply goes on the EVIDENCE.
It is that simple!