NPA has right to appeal

The decision of the national director of public prosecutions, Shaun Abrahams, to seek leave to appeal the so-called spy tapes ruling of the full Bench of the Gauteng division of the High Court has not only once more exposed many a political party’s forked tongue but has also spectacularly laid bare the intellectual rubbish some of our politico-legal commentators subject our nation to on a daily basis.

The Abrahams decision has again needlessly opened up the ignoramus-led debate on prosecutorial independence and institutional independence in general (“Abrahams shreds NPA’s reputation”, May 27).

No sooner had Abrahams announced the National Prosecution Authority’s decision to seek leave to appeal than we heard a mad rush to suggest that the decision meant lack of independence on Abrahams’ part, that it meant he was pro-Zuma and that it was meant to be a delaying tactic.

Some, such as Vusi Pikoli, Pierre de Vos and the usual motley bunch of alleged legal experts (the common factor among them being that all are yet to argue any matter before a court of law), have been over-eager to prematurely offer their “expertise” on how the prospects of the appeal are “low”, “doomed” or something layman like that. All this from persons and parties which conveniently seem oblivious of the fact that the appeal avenue is available to all litigants who feel aggrieved by court decisions and that the prosecution of an appeal is a constitutionally entrenched routine in our jurisprudence.

I remain convinced that had the Democratic Alliance lost in the decision by DJP Ledwaba et al it would also have sought to appeal and nobody would have cried delaying tactics nor begun to articulate some warped understanding of institutional independence. It would seem that some people understand prosecutorial and institutional independence as equivalent to or determined by taking decisions against the government or against President Jacob Zuma in particular.

It cannot be that any decision taken against Zuma is celebrated as pro-independence and that for any institution to be seen as independent it must take anti-Zuma decisions even where they are uncalled for.

Institutional independence should be defined from an understanding that institutional decisions must be taken without fear, favour or influence from any quarter.

Those quarters whose influence must be shunned in independent decision-making include the government, the opposition parties and general opinion-makers alike. We cannot because of our likes or dislikes of a president start developing new lexicons with radicalised and ludicrous meanings of words such as independence.

Let us allow the appeal process in the so-called spy tapes matter to go its whole course without pre judging it or throwing apartheid nostalgia-inspired tantrums. If the routine turnaround time of our jurisprudence takes too much time and ostensibly stands in the way of our insatiable thirst for Zuma’s blood, we ought not to blame Abrahams for simply doing his job.

His is a noble task, to which he has, to date, proven himself more than equal. The issues raised in the NPA’s leave to appeal papers are, without going into the merits thereof and without indulging in speculation about the prospects of success, very germane and need ventilation in our hierarchy of courts to better go to the roots of prosecutorial independence, the rule of law and accountability in a nascent constitutional democracy such as ours and that is the angle from which Abrahams is approaching this matter.

By the way, if the leave to appeal is turned down, petitioning the Supreme Court of Appeal remains available to the NPA and to Zuma. Similarly if the DA loses at the SCA it can go as high as the Constitutional Court. That would not be delaying tactics. It would just be our law in action. —