"We, the people of South Africa, Recognise the injustices of our past; Honour those who suffered for justice and freedom in our land; Respect those who have worked to build and develop our country; and Believe that South Africa belongs to all who live in it, united in our diversity.” Preamble to the Constitution of the Republic of South Africa.
Wednesday, 21 March 2012
SCA judgment a victory for constitutional democracy
In upholding the right of the Democratic Alliance to challenge the National Prosecuting Authority’s decision to withdraw the corruption charges against Jacob Zuma, the judgment confirms that our justice system is currently strong enough to withstand political pressure.
This judgment is of seminal importance for three reasons.
Firstly, it confirms that a decision to discontinue a prosecution is reviewable by the courts. This is a fundamental check and balance to prevent power abuse in our prosecuting authorities and to protect the criminal justice system from political manipulation.
As the judgment notes:
“In fulfilling the constitutional duty of testing the exercise of public power against the Constitution, courts are protecting the very essence of a constitutional democracy. Put simply, it means that each of the arms of government and every citizen, institution or other recognised legal entity, are all bound by and equal before the law. Put differently, 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.”
Equality before the law is a principle that the Democratic Alliance will fight to uphold in this case and any other case in which we suspect that power has been abused. The future of every South African depends on it.
Secondly, the judgment affirms that the DA has the legal standing to bring this review application on the grounds that:
“All political parties participating in parliament must necessarily have an interest in ensuring that public power is exercised in accordance with constitutional and legal prescripts and that the rule of law is upheld. They represent constituents that collectively make up the electorate. They effectively represent the public in parliament.”
The judgment went on to say:
“It clearly is in the public interest that the issues raised in the review application be adjudicated and, in my view, on the papers before us, it cannot seriously be contended that the DA is not acting, genuinely and in good faith, in the public interest.”
This was in stark contrast to the arguments advanced by the opposing advocates that the DA had simply brought this action to score political points. The judgment confirms that the DA, like any other political party, has the right (and, we contend, the duty) to bring legal actions in the public interest and in defence of the Constitution.
Thirdly, the judgment held that the National Prosecuting Authority must make available the requested record of decision it used when the then Acting National Director of Public Prosecutions (NDPP) Mokotedi Mpshe made the decision to drop the charges against Jacob Zuma. Furthemore, the SCA ruled that the NPA “will be obliged to make available whatever was before Mr Mpshe when he made the decision to discontinue the prosecution.”
The importance of this evidence to the outcome of this review application cannot be overstated. The record of decision will shed light on whether Mokotedi Mpshe made the decision to withdraw the prosecution on rational/legal grounds or whether he made the decision based on political considerations. Time will tell.
The Supreme Court’s judgment to uphold our appeal was emphatic and unanimous in all the legal issues before it. We have now secured the foundation from which to challenge the NPA’s decision in the North Gauteng High Court.
We know that this is the first step on a long journey. We expect President Zuma and the NPA – with the financial muscle of the state behind them – to use every legal trick in the book to delay, stall and sidetrack proceedings in an attempt to win time for Jacob Zuma to serve two terms as President.
If anything is acting in bad faith against the people of South Africa, it is this.
Whatever challenges lay ahead, the DA remains committed to fighting this case in the interest of all South Africans and in defence of the Constitution. If we can stop political meddling in our criminal justice system in its tracks, we will make our constitutional democracy stronger so that all citizens are equal before the law.
Helen Zille, Leader of the Democratic Alliance
20 March 2012