Forging the shape of democracy will keep the courts busy

The new year promises some challenging cases of considerable public importance.

Top of any list must be the Democratic Alliance’s challenge to the decision by the then national director of public prosecutions, Mokotedi Mpshe, to drop the prosecution of President Jacob Zuma in respect of a battery of serious criminal charges.

After more than five years, this controversial decision is to be forensically examined by a court. Of course, the high court, where the challenge will be heard this year, will be but a legal way station en route to the final destination – the Constitutional Court. This guarantees that the saga will reach legal finality in 2016 at the earliest.

But an adverse finding by the high court against the decision to drop charges will have major repercussions. If the DA is successful, it would mean that a court will have determined that Mpshe had acted contrary to the law. If the decision is upheld by the Constitutional Court, it would be difficult for the National Prosecuting Authority (NPA) to desist from deciding to prosecute. It would then follow that the political temperature would increase significantly as speculation about the president’s future percolated through the political discourse.

Though this case is dependent on its own facts, thanks to former crime intelligence chief Richard Mdluli, there is now powerful precedent in favour of a challenge to an NPA decision to drop a prosecution. Hence court watchers will be keenly interested in the composition of the Bench that will hear this critical matter.

Another long-running saga – the complaint by members of the Constitutional Court against Western Cape Judge President John Hlophe – may move towards completion this year.

The Judicial Service Commission’s constituted panel, headed by retired Judge Joos Labuschagne, would doubtless have completed its task long ago had it not been for the technical legal objections raised by the two Constitutional Court justices involved in the Hlophe complaint, Bess Nkabinde and Chris Jafta.

That objection was heard and rejected by a full Bench of the Johannesburg high court. They also dismissed the justices’ application for leave to appeal.

But the two justices are tenacious litigants: they have petitioned the Supreme Court of Appeal. In the event that leave is refused or, if granted, the appeal fails, the Labuschagne panel will probably recommence its hearings and bring finality to this intriguing matter.

The DA is not the only political party that litigates. The Economic Freedom Fighters (EFF) have also found that the courts are an important site of struggle. Late last year, the EFF won an urgent application to have the suspension of 12 of its parliamentary caucus lifted after the National Assembly, by way of an ANC majority, sanctioned these members after the ruckus in the Assembly during the president’s question time.

The final determination of this decision, and further relief sought by the EFF against the president and the speaker, Baleka Mbete, await a hearing in the Constitutional Court. This promises to confront the court with a range of disputes that could extend beyond the legal domain but will doubtless produce an interesting judgment (or judgments) on the question of democracy and the role of the courts.

The Constitutional Court has just delivered judgment in the case about the SMS sent by the DA to voters last year during the elections. The SMS said the president “stole” public money in the course of the nearly R250-million state expenditure on his home in Nkandla.

The case raises significant issues about freedom of political speech.

For journalists such as Max du Preez, who wrote a column criticising the conduct of the president, only to find that Independent Newspapers apologised to the president for his column, the Constitutional Court’s decision may well afford some measure of constitutional protection.

That said, the court’s ruling protecting the SMS as free speech is unlikely to change the minds of those who issued the apology for Du Preez’s column, without consulting him. (He has since left Independent Newspapers.)

These important political cases notwithstanding, the majority of the population will be far more interested in the appeal by the state against the decision by the high court in Pretoria in the Oscar Pistorius case.

The court granted leave to appeal against the conviction alone, which means that, if the appeal court decides that culpable homicide was the correct outcome, it is unlikely that the sentence will be altered.

The key question for the appeal concerns dolus eventualis: that is, was Judge Thokozile Masipa correct when she found that Pistorius, notwithstanding the four shots he fired through the door to a narrow bathroom, apparently fearing that there was an intruder in there, did not foresee the possibility that his action could cause the death of a person and thus did not act recklessly in relation to that possibility?

Not only will the decision bring finality to this question, and probably cause embarrassment to some of the many commentators on this case, but if the appeal court finds that, indeed, he had the requisite dolus, Pistorius is likely to be in prison for a much longer period.

Viewed in this way, 2015 is likely to continue the present trend in which the courts remain central to both political and social questions.

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