Constitution allows NPA to review decision, taking representations from the accused and other parties

Helen Zille thinks she should have her say but not the leader of the ANC, writes Mathews Phosa

The front page editorial of last week’s Sunday Times has muddied the waters in relation to ANC president Jacob Zuma’s representations to the national prosecuting authority.

Premature pronouncements by certain members of the ANC have also not helped to provide the NPA with the necessary space in which to apply its mind properly to the representations before it.

In stark contrast with other political parties and certain biased media bosses, it is not the ANC’s position that the NPA has made any decision. However, it does remain the ANC’s view that any decision taken by the NPA will be respected.

In as much as the ANC has been accused of it, the view can also exist that it is the Sunday Times and other members of the South African political community who have decided to intimidate and pressure the NPA to bow to their wishes.

Democratic Alliance leader Helen Zille has, with the help of her allies in the media, attempted to pronounce that any decision by the NPA to withdraw charges against Zuma would be a decision made contrary to the constitution ­ and would undermine the rule of law.

However, she has contradicted herself, by seeking and obtaining permission from the NPA to file representations. This is in stark contrast to her insulting remarks regarding the integrity of the NPA.

What is of further import was her dogmatic support for the NPA when it decided to appeal the judgment of Judge Chris Nicholson. It is interesting that the NPA and, as an active bystander, Zille, sought to appeal against a decision by the Pietermaritzburg High Court that Zuma is entitled to make representations.

Why did the NPA appeal this decision, and why did Zille so vehemently support this? Yet, little more than two months later, the NPA invited Zuma to make representations?

Why, if Zille were so adamant about depriving Zuma of the constitutional right to make representations, does she now see fit to accord herself this selfsame constitutional right? Why does she trust the NPA enough to consider her representations, but refuses to extend this trust to the NPA in terms of considering Zuma’s representations?

The answer to this is that Zille and her opposition-party brethren do not care about the constitution or the rule of law.

To them, the constitution is a plaything, which they use to substantiate their political campaigns, instead of applying it consistently in the manner and spirit for which it was crafted.

Opposition political parties and parcels of the South African media maintain that Zuma must be subjected to a trial to be equal before the law. They further contend that there is enough evidence against Zuma to ensure a successful prosecution.

These opinions are rubbished by the constitution and by internationally recognised prosecutorial practice.

Section 179(5)(d)(iii) of the constitution makes its clear that the NPA may review its decision to prosecute any accused by taking representations from such an accused, and any other group or individual, who have an interest in such a prosecution.

The DA’s insistence on making representations to the NPA confirms that they share the view that this is a constitutional right. Why then should Zuma be treated as less than equal before the law, by having to be subjected to a criminal trial instead of pursuing the constitutional process of making representations?

The contention that there is enough evidence against Zuma to successfully prosecute him is also opportunistic and ridiculous.

It is impossible to reliably make such a statement if the NPA’s evidence has not been measured and considered against the evidence the defence has to counter the state’s evidence.

The defence has no obligation to share its evidence with the NPA, but it may elect to do so in the form of representations. However, the defence’s evidence remains confidential, between the NPA and the defence.

Therefore public calls to have access to this evidence are not only naive but contrary to prosecutorial practice and legislation.

What is clear is that the NPA’s invitation to Zuma to make representations is the first time that it is considering Zuma’s case with due regard for the constitution.

The behaviour of the NPA over the past eight years has been questionable ­ two high court judges and the public protector found this to be the case.

Whatever decision the NPA arrives at, we will respect it.

Phosa is treasurer-general of the ANC.

With acknowledgements to Mathews Phosa and Sunday Times.