#NxasanaJudgment: Appealing will hurt Zuma – the days of disrespecting the NPA are over

This post first appeared on Daily Maverick on 11 December, 2017

When a court has to go to the unthinkable extreme of violating the Constitution’s visible expression in order to protect its invisible meaning to prevent said Constitution and itself from being complicit in crime, the president in question is a problem.

Corruption Watch‚ Freedom Under Law and the Council for the Advancement of the South African Constitution asked the North Gauteng High Court in Pretoria to review the R17 million settlement paid to former National Director of Public Prosecutions, Mxolisi Nxasana.

Written by Judge President Dunstan Mlambo and judges Natvarlal Ranchod and Willem van der Linde, the judgment set aside Shaun Abraham’s appointment as Nxasana’s replacement, picked on the “pattern of the president’s conduct in litigation, of defending what ultimately turns out — on the president’s own concession — to have been the indefensible all along, banking on any advantage that the passage of the time may bring”, as well as Advocate Abrahams’s failure to retain prosecutorial independence “on all the material issues with the position of the president”. They also said the deputy president must appoint the next prosecutions’ authority director.

Zuma’s appeal will probably say the judgment violated the doctrine of the separation of powers. The Umkhonto we Sizwe Military Veterans Association likewise described the ruling as “judicial overreach”, a “judicial coup”. But the judgment has introduced an insight not even an appeal can erase. It could be argued that the judgment was the court’s protest against “the pattern” it spoke of.

Even allowing that the court went too far at any point, it could be said the alternative would have been the court’s failure to defend itself and the doctrine of the separation of powers from being inveigled into what its representatives justly saw, at the time (on the basis of what the president’s counsel conceded) as a pattern of defending the indefensible and undermining the rule of law.

The president’s counting too often on the doctrine has had the effect of undermining the purpose for and spirit in which it was formulated, making the court’s violation of the letter of the doctrine a stronger expression of its spirit than upholding the letter would have been.

When a court has to go to the unthinkable extreme of violating the Constitution’s visible expression in order to protect its invisible meaning to prevent said Constitution and itself from being complicit in crime, the president in question is a problem.

Because the High Court’s judgment said ignoring the possibility that Zuma uses court processes to subvert justice would be naïve, the next court he appears before has to give serious consideration to the possibility that the presidency’s professed hopes that the grounds of appeal will be “properly ventilated in the normal course in court proceedings”, is really dog-whistle messaging for, “this will buy us time”, corroborating the charge that the president’s broader view of the judiciary is contemptuous; that the legalese his legal team uses is a mockery of the “principle of the separation of powers‚ constitutional legality and the rule of law” he purports to be “minded by”.

If this judgment is legally weaponised by an interested party, any court (Supreme Court of Appeals [SCA], Constitutional Court) could legitimately take the initiative and contemplate the possibility that the president’s conceivable scorn towards the Constitution that sets out how it should serve the “we, the people” in its preamble is the flip-side to his seriousness towards serving the interests of someone other than “we, the people”. I’m no lawyer, but the circumstantial evidence for State Capture could emerge in future judgments against Zuma if a judge holds the president’s known conduct in litigation up to the light of the Constitution. Legally, the president’s failings will take on a “captured” shape.

The extent of the victory the SCA grants Zuma’s appeal will depend on its willingness to overturn the implicit finding that he bribed the former Director of Public Prosecutions to vacate his job, and its willingness to condone (for whatever given explanation) the illegality of the amount paid from the public purse for said bribe. Even if the complaint that the doctrine of the separation of powers was violated is accepted, the SCA would be expressing a preference for the presidency’s abuse of the doctrine of the separation of powers for evidently questionable ends, over the High Court’s violation of the letter of the doctrine so as to uphold its spirit.

The Constitutional Court would settle the matter to Zuma’s disadvantage unless his legal team’s success at proving the violation of the separation is coupled with successful contestation of the factual findings that informed the High Court’s judgment. Then, the extent to which the appeal overthrows the High Court in this case would overthrow their client in every future case. Zuma risks winning this battle by losing the overall war to stay out of jail until 2019 — which is a Pyrrhic victory.

Even before then, the president could be accused of leaving the judiciary (and Parliament, whose members are constitutionally mandated to act by conscience despite their party’s contrary belief) between a rock and a hard place: he could be accused of throwing them into constitutional crises that would most simply be resolved by his resignation. It’s too soon to tell the form and the platform such accusations would take, let alone the outcomes they would build to.

This much, we now know: the High Court agrees with Shaun Abrahams’ warning that the days of disrespecting the NPA are over.

Please comment, retweet and follow: @SKhumalo1987

Book coming courtesy of Kwela, one of NB Publisher’s seven imprints, title You Have to Be Gay to Know God

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