The judgments that will shape SA’s constitutional democracy in 2018

The year promises to produce a number of judgments that will influence the shape of constitutional democracy South Africa. Arguably the most important of these is the fate of national director of public prosecutions (NDPP) Shaun Abrahams, which the Constitutional Court will determine in the first half of this year.

A full Bench of the high court in Pretoria set aside the appointment of Abrahams and ordered that Deputy President Cyril Ramaphosa be empowered to appoint a new NDPP to lead the National Prosecuting Authority (NPA). In deciding not to exercise its discretion to leave Abrahams in his position, the court made a number of telling findings:

“In this litigation — as in the president’s and the NPA’s appeal to the Supreme Court of Appeal — advocate Abrahams has associated himself, inconsistent with the imperative of prosecutorial independence, on all material issues with the position of the president. An example is the three points he argued: the vacancy issue, the conflict issue, and remedies …”

Abrahams’s conduct in the litigation went even further. He attacked the case of the applicants, nonprofit organisations, in language such as this: “I submit that the relief sought is unmeritorious, illogical, incompetent and amounts to an absurdity.”

He had little reserve in casting sweeping aspersions: “I established that there were some serious criticisms of advocate [Nomgcobo] Jiba in the court judgments, but much of the material placed before the courts had been manipulated and actuated by ulterior motives with a view to getting rid of advocate Jiba.”

In the same vein: “I ascertained that the criminal proceedings and the GCB [General Council of the Bar] application were not initiated by disinterested persons who wished to protect the integrity of the institution. In fact, they could be traced to officials within the NPA, centred around [former NDPP] Mr [Mxolisi] Nxasana who had long been at loggerheads with advocate Jiba.”

This is disconcerting language and, on the face of it, suggests a lack of appreciation for whether or not the complaints that were raised, for instance, against Jiba, had any merit — irrespective of their source.

The judgments that questioned the integrity of advocates Jiba, Lawrence Mrwebi and Sibongile Mzinyathi were judgments of the high court, and Abrahams should not have questioned but instead ought to have acted on their determinations.

In the event that Jacob Zuma is no longer president when the appeal is heard, although the Constitutional Court will be required to decide whether sections of the National Prosecution Act dealing with presidential powers relating to the NDPP are unconstitutional, Ramaphosa, recently elected the new ANC president, could decide to abide by the decision of the court.

Further, the issue of the appointment of a new prosecutions boss would presumably not be a live issue any more, because Zuma would no longer be president. But Abrahams has also appealed in this case, presumably to save his job. If the Constitutional Court agrees with the damning passages of the high court judgment, then he is unlikely to succeed.

Would he be required to pay the costs of the successful party from his own pocket? Surely the taxpayer would not be required to foot the bill for Abrahams to save himself from unemployment.

The other decision on appeal concerns the public protector. Here the high court ordered that the chief justice appoint the commissioner to head the state capture inquiry. Zuma has now acted on the advice of the chief justice, as ruled by the public protector, and appointed Deputy Chief Justice Raymond Zondo to lead the inquiry.

The appeal, however, concerns an argument raised by Zuma about the legality of an order that someone other than the president can make such an appointment. Again, if Ramaphosa becomes president of the country before the appeal is heard, he may decide to abort the appeal. But Zuma would be entitled to continue with his appeal against the order that he personally pay the costs of the successful party in the litigation, which is estimated to run into the millions.

A third possible case concerns the prosecution of Zuma on 783 counts of corruption, fraud, racketeering and money laundering, which were upheld by the Supreme Court of Appeal in October last year. If Abrahams upholds Zuma’s representations and decides not to prosecute, then it is an odds-on bet that this decision will be taken on review by the Democratic Alliance, which brought the original case to have the charges reinstated, and other interested parties.

If Abrahams decides to charge Zuma, it would be in keeping with the Stalingrad strategy adopted by Zuma’s legal team to seek to review this decision. If Zuma is no longer president, he would probably have to finance his own litigation, which will make a change from current practice and may finally cause the saga to be brought more speedily to finality.

Apart from this litigation, the courts will doubtless be confronted with complex Steinhoff litigation as well as possible criminal trials that should result from the recent and welcome action (at last) on state capture by the Hawks. This possibility brings us back to the NDPP case to be argued before the Constitutional Court.

Steinhoff and state capture litigation will be complex and lengthy; doubtless the various accused will hire the best lawyers that the Bar offers. It is imperative that the prosecution service is energised by decisive and skilled leadership, and that these cases are litigated by teams capable of fighting off the legal barrage the accused’s legal teams will hurl at them.

The public is entitled to be highly sceptical about the prosecution service. It must be an issue that tops the agenda of the incoming president.

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