South Africa

Analysis: SA’s justice system and the deathly hallows

By Greg Nicolson 20 July 2012

Months after the National Prosecuting Authority was ordered to hand over the record of decision on the Jacob Zuma case, the Democratic Alliance is still waiting, saying the arm of the law is in contempt of court. It should worry us all. By GREG NICOLSON.

Helen Zille was scathing as the DA told the press on Wednesday the NPA hadn’t provided the party with the documents, recordings, material and evidence which led to the dropping of charges against Zuma before he was elected president in 2009.

“As of today, 18 July – some four months since the judgment was handed down – the order has not been complied with. Consequently, the NPA is in contempt of the Supreme Court of Appeals,” said Zille.

Is the NPA in contempt of court? Is an institution committed to “justice in our society, so that people can live in freedom and security” interfering with the administration of justice?

On 20 March the Supreme Court of Appeal ruled that the NPA’s decision to drop charges against Zuma is subject to review. All material related to the decision, minus the submissions of Zuma and any follow-up material, must be submitted within 14 days, said the judgment.

After the deadline passed, the NPA asked the DA for a three-week extension to transcribe the content of tapes in which former national director of public prosecutions Bulelani Ngcuka and senior prosecutor Leonard McCarthy had suggested a political motive behind the charges against Zuma.

In the meantime, it forwarded the information to the president’s lawyer, Michael Hulley, because in its interpretation of the SCA judgment it was “obliged to give an opportunity to Mr Zuma’s legal team to consider whether there is any objection to disclosure of (the) transcripts”.

On 29 June the DA offered another 18 days’ grace and the NPA lodged some documents, but none revealing anything about the decision to drop the case against Zuma. “Since then the state attorney, on behalf of the NPA, has dodged, ducked and dived, but has still not produced the complete record of decision as described in the judgment,” said Zille on Wednesday.

“The process is taking longer than we anticipated,” said NPA spokesman Mthunzi Mhaga. “Hence the delay in supplying them with the relevant information… The process includes transcribing of the records, verification and submitting to the president’s legal team due to the representations being subject to confidentiality rule.”

Constitutional law expert Pierre de Vos said deciding whether the NPA is in contempt of court isn’t clear-cut because of the secretive nature of the material and the position it finds itself in. 

“It’s difficult to say because it’s not clear what documents were handed over. Secondly, we don’t know what documents they relied upon to make the decision they did,” he said. 

“The SCA put the NPA on the spot in a way because they have to decide what documents to hand over. If they provide insufficient documents the court may find the decision (to drop charges against Zuma) was not rational. Too many (documents) could be embarrassing,” said de Vos.

He said the NPA might have legitimate reasons for the delay, having to sift through thousands of documents and audio files without the staff that made the original decision. Most have moved on or been shifted.

“It’s not absolutely unheard of for people not to comply as diligently as they should with a court order, especially if the court is ambivalent. To be fair, this court order wasn’t particularly precise… It gave them some kind of discretion,” said de Vos.

That’s the best-case scenario. Even then it must be asked: why has the NPA let Zuma’s legal team view the “spy tapes” before it hands them over? A reading of the SCA judgment suggests they don’t need to be excluded under the “reduced record” provision.

The worst-case scenario is that the NPA is in contempt of court and hollowing the walls of justice by ignoring the very laws it’s built to protect. 

“It would be a highly unusual thing for the NPA, who is supposed to uphold the Constitution and law, to ignore the court order for political reasons,” said de Vos. “It should never get close to that… Respect for courts and independence would be undermined.”

That’s just what the DA suggests the NPA is doing. After the SCA ruling, Zille lauded the decision as a victory for constitutional democracy. She quoted a passage of the judgment: “it means that none of us is above the law. It is a concept that we, as a nation, must cherish, nurture and protect. We must be intent on ensuring that it is ingrained in the national psyche. It is our best guarantee against tyranny, now and in the future”. 

On Wednesday her tone had changed: “As far as we can tell it is unprecedented for the NPA to be in contempt of court. It is untenable that an institution of state, constitutionally mandated to uphold the law without fear or favour, has blatantly defied an order of the Supreme Court of Appeal. This is unacceptable, unconstitutional and illegal.”

Add some context to the story and there’s reason to worry. National Union of Mineworkers SA president Cedric Gina greeted the March ruling against the NPA with the threat to strike. ANC spokesman Jackson Mthembu said: “It is clear that democracy can be undermined by simply approaching the courts to reverse any decision arrived at by a qualified organ of the state.”

The DA has lodged an application in the North Gauteng High Court to compel the NPA to hand over the information. If we take the worst-case scenario, the situation suggests leaders of the NPA agree with Gina and Mthembu’s version of democracy, where some actions of the state should be exempt from being tested in court.

The difference between them, however, is the NPA is mandated by the Constitution to “institute criminal proceedings on behalf of the state, and to carry out any necessary functions incidental to instituting criminal proceedings”. Ignoring the court might win Zuma a second term, but it will skin the NPA of its independence. DM

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Photo: South Africa’s African National Congress (ANC) President Jacob Zuma in a quiet moment during a newss conference after appearing in the Durban High Court, after the National Prosecuting Authority dropped all charges against him, April 7, 2009. South Africa’s Jacob Zuma said  he had been “vindicated” after prosecutors dropped corruption charges against him and vowed to focus on leading the country after the 2009 election. REUTERS/Rogan Ward



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