Michael Hulley, President Jacob Zuma’s lawyer, might do well to have a sidebar with Judge Willem Heath on his legal argument that the president cannot be prosecuted while in office.
A little chat with Heath, who has advised Zuma’s legal team in the past, would reveal that in 1993 Heath ruled that another head of state — Brigadier Oupa Gqozo of the Ciskei — was not above the law and could in fact face criminal prosecution.
Zuma’s affidavit — which was filed with the Pretoria High Court in response to the Democratic Alliance (DA) seeking a review of the decision by the National Prosecuting Authority to withdraw charges against Zuma shortly before the April 22 election — argues that the president cannot be charged with criminal conduct while in office.
“Charges can only be brought if he is successfully impeached in terms of the Constitution or after his term of office ends,” Zuma’s papers say.
Click here to read the Mail & Guardian story and here to view the DA’s statement with a link to Zuma’s affidavit.
The 1993 court case in the Bhisho High Court was a fascinating one in which Gqozo’s lawyer, Dup de Bruyn, used a principal of English common law – the king can do no wrong – to argue that Gqozo was immune from criminal prosecution.
De Bruyn, a senior counsel based in Port Elizabeth, told Grubstreet that it was a highly strategic case and the principal invoked was that Gqozo could not be prosecuted in his personal capacity for what he had done as military ruler of the homeland.
Sebe, the former chief commander of the Ciskei’s combined forces and the brother of Ciskei’s ousted ruler, Lennox Sebe, was shot in 1991 near King William’s Town.
Heath found that the principal did not apply because it clashed fundamentally with the Ciskei’s bill of rights that held that “all persons are equal before the law”.
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The king can do wrong... Courtesy of the Daily Dispatch library
That Heath was the presiding judge is not the only irony here. After Gqozo was aquitted of the murder charge, the ANC supported the Sebe family’s subsequent civil suit against Gqozo. Click here to read the 1993 statement by the ANC on Gqozo’s acquittal.
Pretoria lawyer Julian kinght, who was a human rights lawyer in the Eastern Cape in the 1980s and early 1990s, says there is nothing in the South African constitution that says our president is above the law and that Zuma’s latest move puts him in the dubious ranks of Silvio Berlusconi of Italy and Jacques Chirac of France.
“Unless you want to call it the Rogue’s Charter, there is no certainly no foundation in South African law for this,” says Knight. On the “king can do no wrong” principal, Knight says: “You do have a royal perogative to make a decision but you can’t absolve yourself from any wrongdoing.”
Legal expert Pierre de Vos has rubbished Hulley’s argument in the strongest terms while legal layman Grubstreet is of the opinion that the 1993 Ciskei ruling does indeed have a bearing on this case.
Like the Ciskei bill of rights, the South African constitution holds that we are all equal before the law. The king can do wrong and we can hold him accountable. God save the king.
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September 18th, 2009 at 2:15 pm
Indeed, I am with you, the King can do wrong in South African law. Even the English common law on this aspect stands on rickety scaffolding. In 1840, Charles I of England was tried and convicted of tyranny and treason, whereafter he was executed.