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16 Apr 2009 08:13
The National Prosecuting Authority’s (NPA) decision to drop charges against African National Congress (ANC) president Jacob Zuma was a tipping point that could lead to the erosion of the rule of law, a senior advocate has warned, the Star reported on Thursday.
“We may later see this as a tipping point leading to a slippery slope to the erosion of the rule of law,” constitutional law expert Wim Trengove SC told a seminar at the University of Cape Town on Wednesday.
According to Trengove, acting NPA chief Mokotedi Mpshe’s decision was based largely on peripheral considerations, such as “11th hour shenanigans relating to the timing of the prosecution”.
Trengove represented the NPA several times in opposing Zuma’s legal bids to halt his prosecution.
He said Mpshe had not sufficiently weighed up public interest in seeing justice done, particularly regarding those alleged to have abused public office.
Mpshe had failed to apply a two-step test he had set himself. In addition to determining whether the case had been “fatally infected” by manipulation, he should also have determined whether this contamination outweighed the public interest in seeing justice done.
Mpshe’s conduct “seems to be that of one only too relieved to find an escape from unbearable pressure”, the Star quoted Trengove as saying.
DA calls for Mpshe to step down
Meanwhile the Democratic Alliance (DA) has called on Mpshe to resign after revelations that he borrowed from a Hong Kong court ruling in his reasoning for dropping the Zuma case.
DA chief whip Ian Davidson said this was proof that Mpshe failed to apply his mind to the matter, and had acted on a political motive instead.
“Mpshe must stand down from his post following the emergence of incontrovertible evidence that his statement giving reasons for dropping charges against Jacob Zuma was plagiarised from the judgement of a Hong Kong High Court.
“This implies the NPA never bothered to apply its mind to the evidence before it, and that, instead, the NPA had a conclusion in mind before it started and worked backwards to find a justification.
“When the NPA failed to find anything within South African law to overcome Judge Harms’s statement that the motive behind a prosecution is irrelevant, it resorted to plagiarising an obscure ruling from a foreign court.”
Davidson argued that the Hong Kong judgement did not create a binding precedent because it was based on the common law of another country.
He also pointed out that the ruling by Justice Conrad Seagrott was later overturned on appeal.
materially affects the validity of the NPA’s argument for dropping charges,” Davidson said.
He said the matter would add weight to the DA’s application for a judicial review of Mpshe’s decision to withdraw all fraud, corruption, racketeering and money laundering charges against South Africa’s likely next president.—Sapa
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