A major plank in the silent coup that is at the core of the capture of the state is the hijacking of the criminal justice administration for the nefarious ends of those behind State Capture. This stratagem requires the leadership of the police and the prosecution authority to look after their backs. The unfortunate track records of senior personnel in police management and the NPA speak volumes.

If, as is reported by Sunday Times on 14 January, Shaun Abrahams, our current National Director of Public Prosecutions, when confronted with the dockets relating to the criminal prosecution of the (perhaps previously) politically well-connected, wanted to take counsel with higher authorities before acting, then the capture of the NPA is complete and the need to relieve him of his post is urgent. He clearly has no conception of his own independence, a fundamental constitutional criterion of his high office. 

If, as similarly reported, Jacob Zuma was bullied into making his statement announcing his somewhat ambivalent acquiescence in the remedial action directed by Thuli Madonsela in her “State of Capture” report of 14 October 2016, while the constitutionality and appropriateness of so doing is still an open legal question, then the inquiry will be a lame duck. Sittings will be interdicted by the state-capturers and their review of the legality of the appointment process will wend its way through the courts at glacial pace. 

It is true that there are High Court orders in place. One directs the president to appoint the Madonsela-inspired commission. The other requires Deputy President Cyril Ramaphosa, who has since become president of the ANC and heir apparent to the presidency of SA, to appoint a new NDPP in place of Shaun the Sheep, whose appointment is regarded as illegal and untenable by the High Court.

The two judgments are mutually contradictory: the former posits a dubious work-around solution (admittedly Madonsela’s idea) to the conflict of interests in which Zuma finds himself, while the latter solves the same problem by requiring the Deputy President to act in his place by immediately appointing a proper NDPP in place of Abrahams. Madonsela is not the Delphic oracle; her remedial action has to be constitutionally appropriate. It is hardly appropriate to require the Chief Justice to join the executive branch of government temporarily to select the commissioner. 

The legal problem is that while there are appeals pending in both matters, as there are, and while the inwardness of the provisions in the Constitution that allow a deputy president to act in place of a president who is unable to act remains contested legal terrain, the situation is legally as frozen as the proverbial glacier. The much needed new leadership of the NPA and the urgently required appointment of a review-free commission of inquiry that can actually get on with the task at hand concerning State Capture must, in the ordinary course, await interminable appeal processes that notionally include the Supreme Court of Appeal, followed by an application for leave “in the interests of justice” to appeal to the Constitutional Court which will, given the conflicting import of the two High Court full bench judgments, most likely give leave and allow a hearing of the appeals. 

By the time all this has happened the country could well have gone to hell in a handbasket.

There is however a glimmer of hope. The law is not such an ass as to allow judges to sit on their hands while the democratic constitutional project is destroyed by the coup plotters and state capturers.

Last June the Quaker Peace Centre, the FW de Klerk Foundation and AfriForum asked the Constitutional Court to assess their argument that when the president is conflicted the deputy president should act in his place. The court indicated in July that it would not be in the interests of justice “at this stage” due to the other proceedings pending in the High Court.

That is no longer the case; the High Court has given two mutually contradictory answers to the burning question in its judgments and it is now “the stage” at which to reconsider the interests of justice in relation to allowing a senseless sheep to avoid slaughter and a sly old fox to outmanoeuvre the new brooms as they sweep clean in Luthuli House. The final determination of the issues in both matters ought to take place in the Constitutional Court without delay. DM

Paul Hoffman SC is a director of Accountability Now.

Opinion Editorial published in the Daily Maverick on 15 January 2015.