Sipho Seepe
7 May 2008
opinion
Johannesburg — THE same week that President Thabo Mbeki was being entertained by the King of Swaziland, Jacob Zuma emerged from the door of 10 Downing Street. The smile of the British prime minister bore testimony to the success of the meeting.
Cynics have asked why Zuma is on a charm offensive. What they omit is that Zuma does not invite himself. While some are still angry at Zuma's drubbing of Mbeki in December, the rest of the world has moved on. And Zuma has not disappointed. In the latest Time Magazine he is listed among the world's 100 most influential leaders.
In an appropriately titled article, Zuma's on a charm offensive, in The Sunday Independent recently, Ivan Fallon sums up Zuma's European escapade thus: "His meetings were heavily oversubscribed, with businessmen and politicians almost standing in line; senior Afrikaners have hailed him as the great hope, not just for SA, but for the whole region and, in private, talk of him as even better than Nelson Mandela." The negative messages back home stand in glaring contrast to the confidence and support displayed by influential leaders of the world. For them, SA is a stable democracy.
Suggestions that our institutions of democracy are under threat are unhelpful and misguided. Impressions are being created that, while all of us were affected and infected by the virus of racism, somehow our institutions remained immune. But nothing could be further from the truth. Developments in the media, our communities and some of our universities indicate that creating nonracial communities will remain a challenge for some time. The same can be said of the courts. While the judiciary is an important pillar of our democracy, the suggestion that judges are infallible is not sustainable. Judges are products of their environment and are not immune to the same biases as the rest of us.
Institutions of democracy have to earn respect. And they can do so only if they conduct themselves in a manner that displays independence from political influence or racial bias. Impartiality and integrity cannot be assumed.
This nuanced understanding is contained in an open letter written to George Bizos and Arthur Chaskalson by Paul Ngobeni, deputy registrar of legal services at the University of Cape Town. Ngobeni argues that, far from impugning the integrity of the judiciary, as suggested by Bizos and Chaskalson, Zuma's supporters' reading of the case against Zuma is much more sophisticated. It is firmly rooted in our own constitution and finds support in the rulings of courts from around the civilised world . Contrary to statements by Bizos and Chaskalson, Ngobeni asserts: "There is nothing harmful to the judicial process, SA's constitutional democracy and the country's reputation in our citizens calling for the courts to live up to their responsibility and to hold the National Prosecuting Authority accountable."
Ngobeni says Zuma is entitled to argue for a dismissal of his case under the doctrine of abuse of process. The general rule is that the unfair or oppressive treatment of an accused by the prosecuting authorities disentitles the state to carry on with the prosecution. The prosecution is set aside, not on the merits, but because it is tainted to such a degree that to allow it to proceed would tarnish the integrity of the court. The court can act in a wide range of circumstances including where, by reason of some circumstance, the defendant would be denied a fair trial; and where, because of some circumstance, it would be unfair to try the defendant.
In cases of undue delay, grave misconduct on the part of the police, executive, or prosecution which undermines or threatens the rule of law, the court may and sometimes should intervene, even where a fair trial can take place. The rationale behind this is that the court should act so as to show its disapproval.
Exposing such infractions is not a threat to our judiciary. Justice must not only be done but must be seen to be done for the judiciary to enjoy the confidence of society.
Prof Seepe is president of the South African Institute of Race Relations.
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