The role of civil society formations in democratic societies remains underscored as necessary, helpful, and useful. This role while in a general context understood in this frame, in South Africa’s post apartheid context is not as noble or honourable as is comfortably assumed.
We must ask again what then is the overarching meaning and purpose of those who in self-ordained appointed sense assume the guardianship of a constitutional franchise when they in narrowness of mind attempts dictating the scope and boundaries of our democracy from a political position?
The Constitutional Court on March 14, 2018 ruled that the current NDPP Advocate Shaun Abrahams could rule on former President Zuma with a decision. He is to rule as to whether the NDP will formally charge Zuma in accordance with an 18 count case that the NDP botched not once but twice when its former leaderships firstly Advocate Bulelani Ngcuka opted to hold a press conference to communicate a message that while there was prima faci evidence for a case to be answered by Zuma, the like hood of success in a court is not certain therefore the case is not winnable.
Advocate Mpshe in 2009 would later on withdraw the charges citing the political context of the case that confirms the case as compromised against Zuma. Subsequent court rulings from among other the Gauteng High Court and later the appellate division rendered the decision of Mpshe as irrational and therefore the NPA must provide substantive justification for not proceeding with the case as to be decided by the NPA.
Subsequent to this the NDPP extended an opportunity to former President Zuma to make submissions in this regard. The NDPP subsequently appointed a team from his office who had looked at the merits of the case to advise him with a decision that only he must take. That advise we know and was received as we have learned from the recent court case where Advocate Abrahams was defending his right to be in his office in response to a North Gauteng High Court ruling of November as led by a full bench. Abrahams also through his attorneys informed us that he has already decided on prosecuting Zuma.
We know that the Constitutional Court on Wednesday dismissed an application by the Council for the Advancement of the South African Constitution to have the head of the NPA delay his announcement on whether former president Jacob Zuma should be prosecuted.
As is now custom and perhaps a new ethos the likes of CASAC filed an urgent application last week to interdict the head of the NPA Shaun Abrahams from announcing whether former president Zuma will be prosecuted, pending a ruling in the Constitutional Court in the case.
CASAC as its name stands will tell us all they are a council that exists for the advancement of the South African constitution. Its actions therefore are to be interpreted as at all times in the interest of the upkeep, maintenance, and defence of the constitution. These claims, noble in appearance if considered devoid of appreciating the prevailing political context of SA. A politically loaded context, civil society formations are not exempted from.
Its fundamental premise and departure point therefore by naked interpretation would mean the constitution in South Africa is firstly under threat and secondly warrants advancing. On the latter aspect of advancing a constitutional presence, as noble as is purported, it is equally not without challenge and question, since the assumption is made that entities such as CASAC exists devoid of and in emptiness of political conviction, persuasion, status and even agenda.
Judging the aggregate cases that CASAC over time has brought for judicial review makes it not difficult to naturally see where it is politically located in the crafted discourse of ‘angels’ and ‘demons’ that uncritically has come to define the panaplea of a convenient political personality reality.
We may therefore conclude that the urgent application of CASAC therefore had no material bearing as to test any infringement for the pursuit of an upkeep of the constitution. It also had no demonstrative material claim of assisting any substantial emphasis on a constitutional paradox or challenge for which urgent clarity was needed. It furthermore did point at neither and ambivalence or an ambiguity of the NDPP office in definition of its incumbent in constitutional diaphragm. It therefore must and can only be located within the politics of our day.
What then did CASAC hope to get with its urgent application?
The answers may be various if not man; however one may from those distil a few.
If the defence and advancement of the constitution was not served by this application, if there was nothing substantive at legal and constitutional rudimentary paradigms that were served by it, we must deduce its cornerstone aim may only be located in a political space.
Perhaps in defines of CASAC some will argue, its application was essentially aided by the ruling of Gauteng High Court as delivered by Justice Dunstan Mlambo who unequivocally declared the NDPP illegal to as a result of the controversy around his predecessor Advocate Nxasana vacating the office. Justice Mlambo equally instructed the then deputy president Ramaphosa as the person to appoint the new NDPP instead of the then President Zuma as the constitution directs.
It can thus be argued CASAC, out of its political persuasion considered it opportune to be the face of those who long ago determined the NDPP advocate Abrahams as compromised.
Yet, we also may conclude CASAC’s premise for filing its now dismissed urgent application in the Constitutional Court may also vacillate on a trial by media led and driven rhetoric of the person of Abrahams as tainted.
From such assumed compromised conclusion CASAC harvested a right to assume Advocate Abrahams would automatically act in favour of former president Zuma and not necessarily the law. If we assume this here we may also accept that CASAC’s disposition lends itself to conclude a choice for dismissal of the case on the part of the NPA would necessarily mean a non-advancement of the constitution. This may or may not be their right to hold such conviction, yet it does not make it less questionable?
It also appears and we may only surmise that CASAC no different to others have long made up its mind on the former president.
Does the Constitutional Court effectively with this ruling dismiss the urgency of the application perhaps point us to the bigger picture of its disagreement with the November 2017 ruling of the Gauteng High Court? Did the Constitutional Court irrevocably confirm the status of the NDPP as not in dispute and cannot be made to the subject of dispute. Does this Constitutional Court ruling render the NGHC ruling as out of order for having ruled the way it did on the legality of incumbent? What are the implications if not ramifications for the Constitutional Court ruling in granting the legality, and legitimacy of the NDPP to express and exert its constitutional mandate?
It could not have meant that the CC by dismissing the urgent application and thus entrenched a recognition of the legality and legitimacy of the NDPP did so only for this case. It then must be that if the CC recognized and confirms the NDPP and it’s incumbent as constitutional in the fullness of that recognition, it by extension confirms the fitness of the incumbent, albeit by implication thus rendering the claim of unfitness invalid.
What then do we make of the Justice Dunstan Mlambo rulings which some of us as far back as November and December 2017 concluded on as politically motivated, with intent of inserting the judiciary in a form of overreach into the ANC 54th Conference election outcomes?
Again we must ask what constitutional interest was served by this frivolous application deemed as urgent? What imperative constitutional instructive purpose advancement was served with and hoped for?
Is the political agenda of CASAC rather inadvertently exposed with this application? If so can we continue to entertain CASAC and the slew of civil society formations that in recent years evidence a herd-mentality of political agenda draped in custodianship of a constitutional defence with emotional blackmail praxis of a constitution under threat?
We glad CASAC is a council and not the council, because its glaring contradictions and politically driven agenda confirm it can only be a council and not the council.
Clyde N. Ramalaine