Your correspondent MS Monene of the Polokwane Bar (“NPA has right to appeal” June 3) deserves a brief reply. It needs to be noted that the National Director of Public Prosecutions, Shaun Abrahams, whom Monene stoutly defends, has no dog in the fight in the dispute between the Democratic Alliance and the President over the reinstatement of the 783 charges against the latter. An acting predecessor of his predecessor’s predecessor made the decision not to prosecute; Abrahams has let it be known that he had no part in the decision of Mokotedi Mpshe made in April 2009. The latter, very wisely, abides by the decision of the full bench of the high court which, unsurprisingly, concluded that it is irrational not to prosecute in circumstances in which the corruptor (Schabir Shaik) has been found guilty, beyond a reasonable doubt to the satisfaction of all of the higher courts in the land, of corrupting the President.
The constitutional duty of Abrahams to exercise his functions “without fear, favour or prejudice” is not served by taking sides in this dispute which he has inherited and from which he should be astute to distance himself by simply abiding the decisions of the courts in applications for leave to appeal of all kinds by either disputant. By siding with the person who appointed him, he puts himself in an untenable position if the full bench decision withstands all appeal procedures. How then will he deal with the docket in an even-handed fashion that is without fear of the powerful, without favour to the friendly and without prejudice to the public interest? Will he refuse to prosecute afresh? Will he throw the case by putting an inexperienced junior prosecutor on it? Will he be able to act independently having chosen sides now? Abrahams ought to abandon the application for leave to appeal and leave it to the President to make such arguments against the full bench decision as can reasonably be advanced in the future of the review. It is the only proper way in which Abrahams can serve institutional independence. At present Abrahams is in danger of taking the role of the dog in the classic “His Master’s Voice” advertisement.
Yours in accountability,
Paul Hoffman SC