The Citizen (Gauteng)

Judge questions rule of law in SA

GRAVE CONCERN: FABRICIUS FEARS FOR DEMOCRACY

- Amanda Watson – amandaw@citizen.co.za

‘Do the constituti­onal obligation­s of the prosecutin­g authority… still exist?’

As the Gupta empire continues to crumble, with its bank accounts being closed – temporaril­y at least – Pretoria High Court Judge Hans Fabricius questioned the rule of law in South Africa.

“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, was 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 refuted this. “We execute our constituti­onal obligation­s on a daily basis; there are hundreds of prosecutio­ns every day conducted by the NPA. In respect of the state 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 was to institute criminal proceeding­s on behalf of the state. “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.

But Wits law professor and practising advocate James Grant said: “I’ve completely given up on the justice system to get justice. 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.

“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 if this hasn’t been deliberate­ly done, and I fear it has been,” Grant said.

He said the Hawks should have acted on the Gupta e-mail leaks. “There ought to have been a move to seize their computer hard drives to preserve evidence. Three months have given people a lot of time to move stuff around.”

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