High court judge questions and laments what’s left of rule of law in SA

As the Gupta empire continues to crumble with the latest failure to keep its bank accounts open – temporarily at least – the High Court in Pretoria’s Judge Hans Fabricius questioned if the rule of law in South Africa had been suspended.

“I am obviously also not in a position to comment, save to say the following: when reading details of the various allegations … I could not help to wonder whether, unbeknown to me, democracy and the rule of law had somehow been suspended,” Fabricius said.

“Could it be possible that the future, so bright in 1994, is now only history? Do the constitutional obligations imposed upon the prosecuting authority … still exist? Do the various investigating bodies of the police service … still remember their constitutional duty to combat and investigate crime? I cannot give an answer in these proceedings, for obvious reasons, but the mere fact that the questions arise gravely concerns each and every one of us.”

National Prosecuting Authority (NPA) spokesperson advocate Luvuyo Mfaku wasn’t having any of it.

“We execute our constitutional obligations on a daily basis. There are hundreds of prosecutions every day conducted by the NPA,”said Mfaku.

“In respect of the state of capture investigation conducted by the Hawks, we have gone beyond our constitutional obligations by providing a team of prosecutors to render guidance to the investigations.”

Mfaku said the NPA’s mandate in terms of section 179 of the constitution was to institute criminal proceedings on behalf of the state.

“In order to decide whether to prosecute or not, completed investigation dockets must be presented to the NPA. We have not received any completed dockets relating to the matter from investigative authorities.”

He was a lone voice in the wilderness, however, with the police failing to comment.

In the trenches, where law happens, it’s a dirty business.

“The truth is, I’ve completely given up on the justice system to get justice,” said Wits law professor and practising advocate James Grant.

“I think the way to go at the moment for anyone wanting justice is to use the civil system instead, because then you at least don’t have to depend on somebody for permission to prosecute, or their competence,” Grant said.

“I can’t endorse what Justice Fabricius said more. The breakdown in the institutions required for a properly functional justice system is lamentable and the grave concern of course is whether this hasn’t been deliberately done, and I fear it has been.”

Grant said there was no question the Hawks could have moved quicker on the Gupta e-mail leaks once they began hitting the headlines.

“There ought to have been a move to seize their computer hard drives in order to preserve evidence but none of that has happened. They might be investigating, but three months have given people a lot of time to move stuff around,” Grant noted.

Forensic consultant Paul O’Sullivan – long a target of the NPA in much the same way he was when he went after disgraced police commissioner Jacki Selebi – also had questions.

“Why is it civil society dealing with the burden of this? Were it not for the likes of Forensics for Justice, Outa,  the Helen Suzman Foundation and Freedom under Law, nothing would happen,” said O’Sullivan.

“Democracy and the rule of law have been suspended, not only by the Zuptas but by all their appointees in the criminal justice system,” O’Sullivan charged.

“By way of example, we have Atul Gupta arranging for police cover, instead of paying for private security guards, every time Julius Malema mentions his name.”

He noted the leaked Gupta e-mails showed Atul had an open line to the then acting chief of police, Lieutenant General Khomotso Phahlane.

“There is no doubt that the Zuptoids in the criminal justice system have been well placed to protect criminals while mounting malicious prosecutions against the citizens exposing corruption,”said O’Sullivan.

In a submission to parliament last week, the Institute for Security Studies and Corruption Watch noted the police had been “scandalised and disgraced by poor leadership for many years, with crises ranging from the Marikana massacre to inaction following allegations of grand corruption made against the Gupta brothers and the Zuma family. This undermines the dedication and hard work of many honest and committed men and women who serve in the SAPS and Hawks.”

In their submission, they emphasise the role parliament can play in the appointment processes.

“The executive branch of government adopted the National Development Plan. Parliament has a responsibility to hold the executive accountable for implementing the policies it promised South Africans it would implement.”