Zuma’s alleged STALINGRAD LITIGATION v A CONSTITUTIONAL PROMISE

A coin necessarily has two sides to it and whereas the NPA asserts that Zuma is abusing the court process and his prospects of succeeding in doing are non-existent, Advocate Mpofu who is defending former President Zuma asserts that Zuma like any citizen is entitled to benefit from the protection of the law and to use any legally available vehicle to ensure that he is not railroaded into a destination where is rights are undermined using the instrumentality of the courts.

Below is a link to an article published by the Daily Maverick under the title: “Zuma resorts to veiled threat of repeated July 2021 violence as his Stalingrad defence drags on.”

The Court ruled that Zuma’s trial be postponed to May pending the determination of the application for a reconsideration of the decision by the 2-member SCA panel to dismiss Zuma’s petition to appeal the decision of the Court a quo to dismiss his leave to appeal.

Is the project to create an open, transparent, accountable constitutional democracy in danger because Zuma used the SCA as a vehicle to protect his rights?

Should litigants be constrained by judicial fatigue or impatience from benefiting from the protection of the constitution?

THE CONSTITUTIONAL PROMISE

It is trite that s33(1) promises just administrative action as follows:

“Everyone has the right to administrative action that is lawful, reasonable, and procedurally fair.”

EVERYONE above is inclusive yet the narrative is that this choice of inclusive wording should be amended to exclude persons like Zuma from enjoying the right to administrative action that is lawful, reasonable, and procedurally fair.

What is lawful judgment? In general, it is a court order that determines each party’s rights and obligations with respect to the issues in dispute.

The judgment in question must be LAWFUL, LEGAL, LEGITIMATE, LICIT meaning that it must have the personality and character of it being in accordance with the law. 

LAWFUL may apply to conformity with the law of any sort (such as natural, divine, common, or canon).  

The lawful sovereign  LEGAL applies to what is sanctioned by law or in conformity with the law, especially as it is written or administered by the courts.   

LEGITIMATE may apply to a legal right or status but also, in extended use, to a right or status supported by tradition, custom, or accepted standards.    

LICIT applies to a strict conformity to the provisions of the law and applies especially to what is regulated by law.  

In terms of s34 of the Constitution, access to courts is a protected right for everyone without any exception as follows:

“Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing Lefcre a court or, where appropriate, another independent and impartial tribunal or forum.”

It is worth highlighting that Advocate Mpofu made the point that reserving the right to a panel of two or more judges of the SCA to determine the prospects of success without affording an aggrieved party the right of audience is patently utra vires the constitutional promise of a fair trial before an independent and impartial forum when the SCA is confined only to rely on the record of a lower court.

The reconsideration weapon was assailed and confirmed as a legitimate next step in relation to decisions of the SCA that may not have been taken based on the facts in the cause.

By granting the relief sought, the Court a quo, yesterday affirmed the doctrine of equality that is a fundamental tenet of the rule of law.

The Presiding Judge correctly found that he had no jurisdiction to anticipate a determination that only can be made by another court that is superior to the High Court.

This is a landmark decision by the Court.

Professor Mupasiri of the Justice Under Rule of Law (JUROL) initiative observed: “After reading Makume J’s judgment in relation to the IDC matter under Case Number 13276/14 that Advocate Mpofu relied upon, I was am encouraged that this judgment will send a strong message to judges who are abusing their discretionary judicial power to deny access to justive in an open and naked manner.

I am reminded of what the late Martin Luther King Jnr said about a person going to a bank to honour a sacred promise entrenched in the constitution to access cash in form of justice only for the promissory note to be dishonored because of insufficient funds in form of justice.

The promise of a fair and just trial is only alive if judges are not exempted from the scrutiny of the public they serve.

I am hopeful that this judgment will set a new tone to litigations. No judge should have the exclusive right to determine prematurely the fate of a person’s complaint without allowing the person to exhause his remedies.

The case of OJ Simpson comes to light for he was acquitted simply because the glove did not fit.

In conclusion, it would be disingenous for anyone to deny that Zuma and his fate has public policy ramifications that require all concerned to be slow in using the Courts manned by persons who are no saints as the theatre to ignore the constitutional limitations entrenched in this supreme law.

The sooner we use Zuma’s experiences to promote and protect the rule of law, the better for a future of inclusivity.”