JOHANNESBURG: Mr Mlambo ruled that the Public Protector Act does not constrain an incumbent from seeking help from outside.
Former president of South Africa, Mr. Jacob Zuma, his supporters and sympathisers are up in arms calling courts and judges stooges of politicians used to fight detractors.
Mr. Zuma, met with his erstwhile political rival the leader of the second-biggest opposition party in South Africa, the Economic Freedom Fighters (EFF), Mr. Julius Malema, on 6th February 2021 in a highly publicised ‘tea’.
Once a formidable team that toppled former leader of South Africa, Mr. Thabo Mbeki, before turning against each other, regularly clashing in parliament, Mr. Zuma and Mr. Malema seem to have now formed a pact with both leaders issuing similar sentiments about the judiciary being compromised.
Mr. Zuma and Mr. Malema’s meeting comes after the former acted in defiance against the commission he set to uncover what happened during his corruption-ridden administration between 2009 and 2018. Surprisingly, Mr. Malema and his party also supported the removal of Mr Zuma from power on 14th February 2018.
The Constitutional Court, the country’s highest court delivered judgment late in January ordering Mr Zuma to abide by a summons to appear before the so-called ‘state capture’ commission and give evidence before it.
The court judges took a unanimous decision indicating that should Mr Zuma not appear on February 15 2020 as per his summons, and without sufficient cause, he would not only be in breach of the Commissions Act but would be in breach of an order of the highest court in the land.
In his judgment, Justice Chris Jafta said the Commissions Act provided for the issuing of summons saying that “once a summons is issued … and served on a prospective witness, that witness is obliged to comply”.
The Constitutional Court also declared that Mr. Zuma does not have the right to remain silent before the commission, though still enjoys the privilege of all witnesses against self-incrimination.
However, the court also indicated that must Mr. Zuma must prove ‘beyond reasonable doubt’ of the evidence that he thinks will incriminate himself.
According to law expert, Mr. Norman Mhlanga, who agrees with the top court, Mr. Zuma does not enjoy the right to remain silent during the proceedings at the panel.
“Mr Zuma does not enjoy the right to remain silence in the Commission because that right can only be enjoyed by an accused person in a criminal proceedings but Mr. Zuma only enjoys a privilege not to adduced evidence that will self-incriminate,” Mr. Mhlanga said.
“However, in this case, Mr Zuma has been treated differently under the privileged of self-incrementing in the sense that the Constitutional Court stated that he must prove beyond reasonable doubt of the evidence that he thinks will incriminate himself,” he added.
Meanwhile, responding to the State of the Nation Address delivered by the country’s president, Mr. Cyril Ramaphosa on Thursday, 11th of February 2021 in Parliament before fifty lawmakers due to the global COVID19 pandemic, Mr. Malema launched a scathing attack on judges and warned them of ‘uprising’, echoing sentiments of the statement issued by Mr. Zuma on Monday, 15th of February 2021.
Mr Malema accused members of the judiciary of receiving bribes from white business interests, and he’s warned of an “uprising” if judges collude with politicians to deal with their opponents.
“Mr President we cannot continue to bury our heads in the sand against growing and now believable allegations that some prominent members of the judiciary are on the payroll of the white capitalist establishment,” Mr Malema said.
“We cannot ignore that some of the judges have received bribes through SSA Project Justice as well as from CR17 donations, which by all standards and measures, amounted to massive corruption, money-laundering and racketeering,” he said.
“They must know that if they continue to think that they are the law, but not interpreters of the law, then the people will rise against such few judges who have made themselves the law and are conspiring with politicians to deal with the opponents of the current establishment.”
Mr. Mhlanga agrees with other aspects of Mr. Malema’s statement, making reference to North Gauteng High Court judge president, Mr. Dustin Mlambo’s judgment on powers and privilege of the public protector’s cases before him.
Mr Mlambo ruled that the Public Protector Act does not constrain an incumbent from seeking help from outside.
“Because of the financial and other constraints mentioned in the (state capture) report, the Public Protector considered it appropriate that the second phase of the investigation into the allegations of “State Capture” be undertaken by a commission of inquiry. There is nothing in neither the Public Protector Act nor the Ethics Act that prohibits the Public Protector from instructing another organ of state to conduct a further investigation,” Mr Mlambo said back then.
However, on Ms Mkhwebane versus Mr Ramphosa, Mr Mlambo who led a full bench of the high court, slammed Ms Mkhwebane for exceeding the scope of her powers. In the CR17 report, Ms Mkhwebane had instructed the National Prosecuting Authority (NPA) to investigate and possibly prosecute acts of money laundering that emanated from the CR17 fund activities. She also wanted parliament to punish Mr Ramaphosa for misleading the house.
According to Mr Mhlanga, “There are merits on [the[ claim regarding the judgment delivered by Judge Mlambo on the powers of the Public Protector enshrined in the Public Protector Act. There is a contradiction on whether public protectors powers is absolutely limited to the powers reflected or enshrined in the Act or can exercise more powers even though not listed on the Act as long as nothing prohibits him/her to do so.”
“Judge Mlambo didn’t apply himself consistent in the interpretation and application of the Public Protector Act. Judges do not make the law but are there to develop the law by interpretation and application of the law,” he added.
However, Mr Mhlanga also believes that there is no merit in the attacks that Mr Zuma and Mr Malema have wielded towards judges and the courts.
“There is no merit to the claim made by [Mr] Malema and [Mr] Zuma as this reflects a general public statement with no mention of the names of judicial members implicated,” Mr Mhlanga said.
“Corruption is a criminal offense, there is no case opened or charge against any members of the judiciary. There will be merits if there was substantial evidence given under oath by [Mr] Malema and [Mr] Zuma,” he added.
In his statement after a no-show at the panel, Mr Zuma said, “We sit with some judges who have assisted the incumbent president (Mr Ramaphosa) to hide from society, what on the face of it seem to be bribes obtained in order to win an internal ANC election.”
“We sit with some judges who sealed those records simply because such records may reveal that some of them, while presiding in our courts, have had their hands filled with the proverbial 30 pieces of silver,” Mr Zuma claimed in his statement.
However, Mr Malema warned that judges were not untouchable.
“The judiciary must know that they are not above the Constitution. They are judges, not gods,” said Mr Malema.
According to a political analyst, Mr Molifi Tshabalala, “It is clear that former president Jacob Zuma must have briefed EFF leader Julius Malema about his claim that certain judges are corrupt without producing any evidence.” On what basis does Tshabalala arrive at such a conclusion?
“It cannot be a coincidence that in his last public statement Zuma would touch on a few within the judiciary who are corrupt and the following day Malema says the same.”
“The claim can only carry weight if there is proof of corruption by certain judges. Thus far, the claims have been made without people producing any form of tangible evidence,” he said.
“This is aimed at discrediting judges who would preside on Zuma’s cases and possibly that of Malema,” Mr Tshabalala added.
Mr. Zuma is facing charges of fraud, racketeering and money laundering for the procurement of the arms in the late 90s. Mr Zuma is accused of receiving bribes from French arms manufacturer Thales. He is set to appear at the High Court in Pietermaritzburg, KwaZulu-Natal, on February 23.
The charges were raised more than a decade ago but withdrawn, then reinstated after the NPA announced there were sufficient grounds to bring Mr. Zuma to trial.
The attacks on judges are not new. The country’s Chief Justice, Mr Mogoeng Mogoeng, in 2019, called for anyone with information regarding corruption in the judiciary to report it in his office.
Responding in 2019, Mr Mogoeng said as a matter of principle, the judiciary is opposed to any derogatory remarks against judges, be it a female or male judge, regardless of where the comment came from.
Mr. Mogoeng added that he did not know what provoked some of the attacks across the media and he did not want to speculate.
According to Mr Tshabalala, “Chief Justice Mogoeng Mogoeng has been at pains to call on anyone who has evidence of corruption by judges or anyone within the judiciary to come forward and produce it. To date, nobody has done so.”