Mervyn Bennun replies to Blade Nzimande

Kader Asmal, Blade Nzimande, and Raymond Suttner are honoured and respected leaders in the anti-apartheid struggle. They are brave comrades who have dedicated their lives to our freedom, who have made great sacrifices and carried heavy loads in times of great danger. They are some of my role-models and when relating to them the word “comrade” comes respectfully to my lips, from my position over decades as a ordinary rank and file member of the ANC (my membership number is WC142947, in case anyone wonders).

One of the claims of the Left is that we encourage and are not afraid of debate — even vigorous debate — and mutual criticism and openness within and between our formations; yet it seems, at the least disagreement, that the only thing we hate more than what I thought was the real enemy is each other. We swiftly abandon serious debate and challenge, and shed all inhibition against opening a personal front in which no vituperation, verbal contempt and venom is too vicious.

It is not pleasant to read what comrade Nzimande has written about Kader Asmal and Raymond Suttner: from the sheer loathing that comes across, it is hard to imagine that Asmal and Suttner might ever have made any worthwhile contribution to the anti-apartheid struggle. They, however, are better placed than I am to react in detail — if they feel that they should — to what Blade Nzimande has said of them. I can’t contribute usefully to that topic, except to express my distaste and dismay at what Blade Nzimande has written; I don’t think that he has improved the quality of his analysis of the legal issues relating to Jacob Zuma by making these personal comments. They are unworthy of someone who stands in the shoes of figures as Chris Hani, Joe Slovo, Yusuf Dadoo and Moses Kotane.

Blade Nzimande is correct to point to the disgusting manner in which Jacob Zuma was treated by Bulelani Ngcuka when the latter was National Director of Public Prosecutions. It was a disgrace and unlawful for a prosecutor, in our adversarial system of criminal justice, to state publicly that “whilst there is a prima facie case of corruption against the Deputy President, our prospects of success are not strong enough. That means that we are not sure if we have a winnable case”.

It does not matter to whom the words relate. As the Public Protector explained, a prosecutor’s task is to decide whether or not there a reasonable prospect of a successful prosecution, and only after the prosecution’s witnesses have been heard and cross-examined will the judge or magistrate alone decide whether there is a prima facie case for the accused to answer to. Ngcuka simply usurped the function of the judge and added it to his own as prosecutor, and announced that Jacob Zuma was guilty but that he should not be put on trial in case he was acquitted – which would be a miscarriage of justice! If Ngcuka — a lawyer, of all people — had not resigned shortly after the Public Protector’s report was published, a Ginwala-type enquiry ought to have been called to consider his removal from office.

The Public Protector’s report is an excellent manual on aspects of how our criminal justice system should work, and though he is not a judge he had to deal with the matter as a judge would do: determine the facts and the issues to be examined, examine and state the legal rules that apply, and then apply them to the facts to reach a conclusion.

It is necessary to understand the constitutional issues to appreciate why the Civil Right initiative by Kader Asmal is so urgently needed, and to understand why Blade Nzimande’s remarks about Asmal and Suttner are so objectionable.

I doubt that Blade Nzimande would disagree with the above contextual analysis of the Public Protector’s report, but it is here that Nzimande goes seriously awry. There is no question in the least that judges are open to criticism: our legal system depends on it. With neither hesitation nor apology, we lawyers — and academic lawyers are surely the most merciless, for that is our duty in a free society — subject what judges decide and how they decide it to the narrowest and most rigorous scrutiny and we make, if we conclude that we must, the fiercest challenges. In its short life, not even judges in the Constitutional Court have been spared. What Blade Nzimande brushes aside is that the scrutiny and challenges are based on the law, and the Public Protector’s report is supportable only because, like a judge’s decisions must be, it is based on the law. If the laws are just and legitimate, then if they are applied correctly the results are just and legitimate; and this is a sound definition of what the Public Protector did. He was right not because the complaint was by Jacob Zuma — he was right because it is unlawful for a prosecutor to treat anybody thus.

The same standard applies to the Constitutional Court and to any other court, and this is why Blade Nzimande’s outburst against Kader Asmal and Raymond Suttner is so wrong. He stated that he was disappointed but not surprised that Zuma lost in the Constitutional Court, and he is using this defeat to place it within a conspiracy against Zuma by an untransformed legal system, and he damns to hell anyone who doubts his conclusion. He clearly thinks that the Constitutional Court was wrong, that Jacob Zuma should not be put on trial, and that if a trial does take place that Jacob Zuma should be acquitted. Others have said, and it appears that Blade Nzimande agrees, that Jacob Zuma is innocent and should not be prosecuted: the entire process is a conspiracy against an innocent man.

On what grounds? It appears that the grounds for this claim are that the case against Jacob Zuma is brought by a justice system that does not “prioritise the advancement of the poor, the marginalised, and (the eradication of) all vestiges of apartheid and unequal (class) access to basic human rights and the legal system itself”.

It appears now that the Constitutional Court is counter-revolutionary and untransformed because it did not take Jacob Zuma’s politics into account when considering whether the searches which were conducted were lawful or not. In other words, the judgment in the Constitutional Court would have been in order had the searches been conducted during investigations into the affairs of someone else, but are wrong because they were to the prejudice of Jacob Zuma.

The supporters of Zuma including Blade Nzimande do not criticise the judgment of the court on the basis of a close analysis of the law. Instead, they have put the judges on trial and concluded that the only just and tolerable verdicts are those that set Jacob Zuma free. Speakers from the ANCYL have said as much; the evidence that a court may hear is immaterial, because they have already decided that Zuma is innocent.

The attack on the Constitutional Court is also a reaction to the express opinion of ten of the eleven judges, from which the eleventh expressed no dissent in his separate judgment, that courts should discourage litigation preliminary to criminal trials that appears to have no purpose other than to avoid the application of section 35(5) of the Constitution (which ensures that evidence which has been unfairly obtained must be excluded if its admission would render a trial unfair or prejudice the administration of justice) and to delay the commencement of a trial contrary to section 35(3)(d) (which states that every accused person has a right to a trial which begins and is concluded without unreasonable delay). These are totally reasonable and correct observations to make about the criminal justice system, but the only objection which this unanimous view of the eleven judges has elicited is based on the fact that the accused person involved is Jacob Zuma.

In contrast, the young man accused of murder in the Skierlik case is hardly concerned with the advancement of the poor and the eradication of inequality in South Africa; would the same complaint against the Court be levelled were he to exercise his equal constitutional rights to make various preliminary challenges, and were the Constitutional Court to make a similar comment? Would this provoke the same criticism from Nzimande? Are each of the eleven judges in the Constitutional Court a “counter-revolutionary” and an untransformed judicially-robed traitor to the Constitution because they have made a finding against Jacob Zuma?

Raymond Suttner has done no more than what one does in democratic politics: he has published a reasoned review of political issues, and readers are entitled to read a reasoned response on the points he has raised. Yet nowhere is this to be seen in Blade Nzimande’s reply, which treats Suttner’s essay as a outrageous blasphemy against the only possible truth — one which need not be proved by a reasoned case as it is the only one permissible, and must never be questioned. Blade Nzimande has simply treated loyalty to Jacob Zuma as a religion to be followed by all on pain of being “eliminated”, substituted religion for politics, and dealt with Raymond Suttner and Kader Asmal accordingly as sinners beneath contempt for daring to question holy gospel.

Jacob Zuma stated his own position in the context of the issues was. Outside the court in Pietermaritzburg he warned that if he is convicted he would, according to the newspapers, “take others down with him”.

But what does mean? Regardless of whether he is guilty or innocent, if Zuma knows of such crimes then why has he not disclosed these matters to be investigated? Is he attempting to ensure his progress to the presidency of South Africa by threats? Only a court can decide whether a person is guilty or not, but Zuma’s own words put this question in mind: Is he an accessory to these crimes and guilty as such? If there are answers, why does Blade Nzimande write as he has done about those who ask these questions?

These matters relate to further grave issues. In the course of his litigation, Zuma and his supporters have claimed that the charges he faces are the result of a conspiracy against him, led by President Mbeki and involving many other high officers of the State, to prevent him from becoming the President of South Africa. A dreadful plot to abuse state power in such a way must involve the gravest crimes against the security of the state and the administration of justice: nothing less than treason, sedition, perjury and subornation to perjury, frustrating or attempting to frustrate the course of justice and various criminal conspiracies must be involved. Surely it is the duty of those who believe this to be true to lay charges against those said to be involved?

It should be noticed that these accusations made by Jacob Zuma against President Mbeki are against someone who is himself a member of the ANC, and who is accused of plotting against Zuma while himself the President of the ANC. Has our honoured liberation movement come to this state of division and mistrust?

Does it mean nothing that Julius Malema and others supporting Zuma have warned that they will not accept a guilty verdict against Jacob Zuma?

It is against this background that Blade Nzimande has attacked those who feel as Kader Asmal does that our Constitution is in peril; it is against this background that Blade Nzimande makes no effort to address the questions raised by Raymond Suttner; and it is against this background that the ANC’s history is being turned to ashes.

Those who make such accusations and threats, and who reject the institutions of our hard-won Constitution for the sake of one person’s ambition to be the president of South Africa, are playing with fire.

This is the road to civil war.