Zuma verdict throws down gauntlet to incoming cabinet

2008-09-27 00:00

Commentary on the court’s findings in the recent application by the president of the ANC in the Pietermaritzburg High Court has been extensive. This is as it should be, if we are to promote a flourishing democracy. On the whole, the judgment has been favourably analysed and the better commentaries have relied on a combination of fact, knowledge and insight.

In essence, the court was called upon to decide two central issues. The first of these related to whether the applicant in this case, Jacob Zuma, should have been afforded an opportunity to make representations before charges were brought against him for the second time.

The court held, in its interpretation of relevant provision of the NPA Act, that in the circumstances of this particular case, the NDPP was indeed required to afford Mr Zuma the opportunity to make representations.

The court did not find or suggest that this procedure should be followed in all prosecutorial processes, but only in cases of reviews of decisions to prosecute or not to prosecute either by the NDPP or by respective DPPs.

It is indeed possible that in interpreting this particular section of the act, a higher court could come to a different conclusion. For this reason, and in order to maintain the integrity of the judicial system, the NDPP’s right to appeal in this matter must be defended. Those who threaten and intimidate in order to prevent “due process” should be condemned by our leadership. So too should puerile characterisations of “progressive” and “counter-revolutionary” judges based on the extent to which they ostensibly serve the interests of any particular grouping.

The second key point that the court was required to decide related to the applications to “strike out” certain allegations in the papers at the instance of both the prosecution and the applicant respectively. In the case of the prosecution, their application was to have struck from the papers on the grounds of being “irrelevant, scandalous and vexatious”, the allegations by Zuma that the prosecution of him involved political meddling.

Little known perhaps is that far from choosing to wander down a path of “judicial activism” as so many commentators have postulated, the court twice requested both parties to agree to drop these applications and to allow the case to be decided primarily on the matter of the right to make representations. Both the applicant and the respondent refused this invitation and the court was therefore obliged to rule on the matter.

To do this, the court was called upon to wade through over 1 000 pages of evidence in order, on the basis of inference, to weigh the notion of a clean prosecutorial process against one in which there was some measure of political interference in the process.

As is well known, the court attached more plausibility to the latter notion once it had analysed the evidence before it and on the basis of the legislatively enshrined principle of the collective responsibility of the cabinet.

To suggest, as some commentators have, that the court was at liberty to make gratuitous points about the conduct of the applicant in this matter and/or his supporters, misunderstands the legal process. While the point might be an important one, it was simply not within the remit of what the court was called upon to decide.

Another commentator stated that the court made a mistake by concluding that Zuma’s firing was “unfair and unjust”. In fact, a reading of the judgment indicates that the court said that it would have been “unfair and unjust” under the common law, but that as the Constitution applied it was not an illegal act.

The effect of this judgment has been to unseat the incumbent president with haste. The judge is unlikely to have predicted this outcome. Nor should he have. It is not the duty of the courts to fashion pat political scenarios which pander to the whims of any particular interest group. This would mean a regression to the dark days of apartheid when so many within the judicial service chose the route of bolstering white supremacy.

The judgment has, however, indirectly thrown down the gauntlet to the incoming political administration insofar as it has re-emphasised the principles in our Constitution which uphold the separation of powers, the importance of due process and the transparency and accountability of government.

To argue that the judge did not “have the courage to rise to the occasion, [in] defending the central pillar of democracy”, is absurd.

The incoming political administration has yet to define a new set of policy parameters. Perhaps it will do this, but it certainly is challenged to differentiate itself on the basis of how it governs. Our country deserves to know that this new administration will:

•never seek to protect any political or other personage from the due process of the law

•institute a judicial commission of inquiry into the arms deal and resolve the issue that has muddied the waters of our infant democracy

•scrupulously defend the independence of the judiciary and the prosecutorial authority

•every time, publicly rebuke all those who threaten the separation of powers, the dignity of the judiciary and due legal processes

•act ruthlessly against incompetence, corruption, cronyism and political opportunism.

The challenge is for government alone. There are many out there in leadership positions in the corporate sector, in tertiary institutions and in parastatals who seek to run these organisations like mini fiefdoms. These leaders thrive in a culture that promotes cabals, political intrigue, marginalisation of opposition, opportunistic racism, vindictiveness and fear in order to enforce conformity.

We will not build a great country, nor will we remain true to the Constitution and the path that Mandela showed us until we rid ourselves of this political and organisational governance.

•Geoff Schreiner participated in the labour movement (Numsa/Cosatu) for 13 years. He then headed the National Peace Accord in KZN and was awarded the Martin Luther Peace Prize. In 1996 he set up a consultancy — Performance Solutions Africa — that provides support to public and private sector organisations in performance improvement. He is also the director of a number of private companies and is a business coach.

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