Judge questions rule of law in SA
GRAVE CONCERN: FABRICIUS FEARS FOR DEMOCRACY
‘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.”