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”.

Story continues below clipping…

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.

Click here for an insight into the shenanigans of the Ciskei: 1997 TRC amnesty application by Kwanele Thoba.

Click here to read the Grubstreet exclusive earlier this year on why the Hong Kong judge, who was key in the NPA’s decision to drop the charges against Zuma, believes the corrpution case should have gone to trial.

Popularity: 10% [?]

The Sunday Times has been taking a battering this year, with criticism coming from many quarters and now the Democratic Alliance is seriously miffed with the paper.

It seems the party handed over documents and details of alleged  ANC skullduggery in Maritzburg (the municipaltiy dished out  R1-million for an event that never happened and then it appears it made its way into ANC coffers). In return for exclusivity, the DA asked  the Sunday Times to credit the party for unearthing the saga.

The paper was hot to trot on the story, reported it, wrote it and even read  the story back to the DA before publishing. Then, at 9pm on Saturday evening, it SMS-d the relevant DA person  to  say the paper was too tight to run the story and they would do so in The Times on Monday.

Good grief, who brought up these people? Where are their manners?

The Times has a much smaller circulation than the Sunday Times and the DA didn’t go to Ray Hartley’s paper — it went to Mondli Makhanya’s paper. Read the whole saga from the DA’s perspective at Moneyweb.

This kind of arrogance doesn’t win you any friends and though there are  a few comments on Moneyweb applauding  the paper  for not wanting to further the DA’s politcial agenda, a deal’s a deal.

Many, many  story leads come from people — political or not — with agendas and  the media needs to be aware of them but there would be very little news if people with axes to grind didn’t run to the press. Ask any hack — the DA (as does the ANC though their leaks tend to emanate from internal power struggles) passes many story leads/ documents/gossip on to the press.

My guess is that the DA won’t be giving too many more story leads to the Sunday Times for a while.

Popularity: 4% [?]

The animosity between the ANC and the DA is growing and, with party leader Helen Zille’s breach of protocol (she’s scheduled her state of the province address before President Jacob Zuma’s state of the nation address), it’s likely to get worse before it gets better. (Click here to read The Times story on the latest spat.)

Last week, Grubstreet spoke to the DA’s leader in Parliament, Athol Trollip, who made headlines when he said Zuma should be treated with the respect that his office confers on him.

Trollip, who surprised many when he beat DA strategist Ryan Coetzee to the caucus leader’s job, is an Eastern Cape farmer who is known for his affable and collaborative style. Looks like he’s going to have his hands full in his desire to build a constructive relationship with the ANC.

Athol Trollip

“Anger very often clouds sanity,” Trollip said. “What I’ve been trying to instill in my colleagues at a provincial level and will continue to do so at a national level is to make sure we don’t try to engage the ANC is a shouting contest. Seventy-seven (DA) members will never be able to outshout 264 ANC members.

“I believe that we can do much more than being an opposition in Parliament, where one is typecast as antagonistic and politicking with the ANC. There is a place for it but I am a proponent of political engagement in the plenaries in Parliament… We will be an effective, critical opposition — where the ANC falls down and cannot deliver on (election) promises, we will expose that and come with an alternative that will make government more effective. ”

Those who know him from the Eastern Cape say Trollip will do the DA a lot of good in Parliament as because he grew up speaking Xhosa in rural Eastern Cape, he understands traditional African etiquette that the top people of the ANC appreciate: you can be forthright but polite; there’s no need to shout.

“It would come out very clearly when he addressed the premier,” said Zingisile Mkabile, the former Pan Africanist Congress leader in the Eastern Cape who has since left politics. “He has some understanding of African values in terms of respect… And having operated in the Eastern Cape, I think his approach will be different compared to those who come from the Western Cape or Gauteng, where the DA is much stronger. The opposition parties were overwhelmed by the ANC in the Eastern Cape so you had to find a way of navigating through that territory.”

It was in his new role as spokesman on the presidency that Trollip characterised Zuma as a fallible, “warm-blooded” South African that was read by some as contrary to Zille’s pronouncements on the president. In a letter last week to The Times newspaper, which reported Trollip’s statements at the Cape Town Press Club under the headline “Top DA man’s attack on Zille”, he denied distancing himself from Zille in any “shape or form”. (Click here to read The Times story that caused the mini media storm.)

He told Grubstreet that he thought the headline did not reflect the report or his statements. He says both Zille and he respect Zuma as the country’s president — a sentiment, he says, that has not been returned by the ANC for Zille’s position as premier of the Western Cape.

The DA is the most media savvy of all the parties and when asked if the strategy may be to project the Trollip and Zille as “good cop, bad cop”, Trollip smacked it down.

“It just shows you a week is a long time in politics because a week ago Helen was the darling of the media and the public. I think it’s a very funny question and I don’t want to be contemptuous about it,” he said.

“I believe I was elected on the strengths I bring to the caucus and not because I would be a balancing act for Helen. And I don’t believe she’s a bad cop. I believe she is an incredibly good cop and the reason why people saying she is being aggressive, you must understand the kind of onslaught she’s under (from the ANC Youth League and MK veterans).”

Trollip may be known for his collaborative style but Bobby Stevenson, who has taken over as the DA’s leader in the Eastern Cape legislature, said: “I think it’s wrong to say he’s not confrontational. He’s not afraid to call a spade a spade or point out any failures of government. I think he doesn’t personalise politics. He doesn’t get personal. He sticks to the issues – that’s his style.”

Click here to read a Q&A with Trollip I did for the Dispatch in 2007 when he campaigned for the top job in the DA and lost to Zille.

Popularity: 5% [?]

Five things you need to know about SA today

1. Brett Kebble’s art collection of 133 works goes on auction tonight. It is estimated it will raise R100-million. Wowee! That’s a big number of an SA  art auction. But to put this in perspective, says Business Day, it won’t get anywhere near meeting the debts the late Mr Dodgy Dealer, who  illegally sold R2bn worth of assets belonging to companies he controlled and used the proceeds partly to curry favour with the ANC. SARS is  claiming R183m alone from his estate in unpaid taxes. Read the excellent Business Day story about one of kebble’s oddest legacies.

2. And also at Business Day, there is gloomy story saying that Absa figures show that the average price of homes has dropped the most in 23 years because of the sagging economy. Small houses faired the best, big houses the worst. Read the full story here.

3. Independent Newspaper got 150 SMS bids for the Julius Malema puppet that starred in the withdrawn Nando’s TV advert, says IOL. The two highest bids came from the Nando’s London office and a South African named Leo Chetty (they both bid R25 000), the latter in the hope that Malma will become president one day. Read the story here.

4. By all accounts our president in waiting, Jacob Zuma, was charming and pithy in Parliament yesterday and we hear that will have three first ladies at the plush inauguration in Pretoria on Saturday. Read the News24 story here. But I’m  bit confused here. Doesn’t he only have two wives? (And two girlfirends?) My liewe aarde! South Afirca is going to be an odd place with the Big Chief tearing up the rule book right from the beginning.   You got to hand it to him for goedspa though!

5. And those spy taps are still a hot item. IOL has a story saying that Zuma is not keen to release all of them to the public.  This a wee porblem as police bosses have promised suspended police commisioner Jackie Selebi all the tapes to use in his defence and the DA had applied for copies of all documents and evidence that the NPA had before him when he decided to drop the charges against Zuma as part of the party’s court challenge to the decision. Zuma’s lawyers, meanwhile,  have  demanded that the DA be ordered to hand over R1.2-million in security before it is allowed to legally challenge the NPA decision. This little boomerang is on the arc. Read the story here.

Popularity: 27% [?]

Five things you need to know about SA today

1. This is top of the pops today! The Dispatch’s wayward Port Alfred correspondent Dave Macgregor, who has a special talent for ferreting out oddball people, has a story about a man in Hamburg (a little coastal resort between Port Alfred and East London) who is converting the farmers in the area into fine imported coffee that he serves up from a trailer. His children, Kei and Che, are making cookies to sell from the traveling business so that they can save up and buy a tractor. My favourite thing in the story is this nifty turn of phrase:

Investing R50 000 in state of the art roasters, a grinder and coffee machine, after four months in Hamburg, McConnell has already converted longtime chicory chuggers into caffeine junkies.

Chicory chuggers — I love that! Read the story here.

2. Cope’s Allan Boesak says that the ANC needs to give the DA and Helen Zille a chance in the Western Cape after promising last week to give her major uphill. Quite so, Reverend, who said the ANC’s response to losing the Western Cape to the DA smacks of a “child-like”  tantrum. Read the story here.

3. Unfortunately, the ANC is ignoring this call for constructive opposition politics, with ANC heavyweight and Labour Minister Membathisi Mdladlana calling Zille a “witch” while in Dutywa in the Transkei at the weekend. Read the story here. Honestly, someone as senior as the minister should not be going around trying to give Julius Malema a run for his money.

4. And while we’re on the DA, their former leader Tony Leon (writing in the Sunday Times at the weekend) about his hope that Jacob Zuma will usher out an era of frosty Mbeki politics in Parliament, suggested that the party’s parliamentary leader could be either Ryan Coetzee or Atholl Trollip. It will be interesting to see. Read the story here.

5.  Sasha-Lee Davids from Atlantis won Idols last night. If, like me, you can’t be bothered to follow the show but are curious about how she sang click here to go to KykNet, which has a range of Idols videos up from the finale. Be warned, thouhg, there’s lots of buffering and it’s a tad slow.

Popularity: 7% [?]

The Democratic Alliance has filed papers with the North Gauteng High Court for a judicial review of the decision by the NPA to withdraw all charges  against Jacob Zuma. Read the Notice of Motion here and the founding affidavit here on the DA’s website.

Popularity: 1% [?]

1. Business Day has a cooker of a story. The evidence ANC president Jacob Zuma’s legal team gave to the National Prosecuting Authority included taped conversation — allegedly gathered by state intelligence agencies — between former president Thabo Mbeki and former Scorpions head Leonard McCarthy. Says the newspaper:

The recorded conversations include a host of other prominent players in the Zuma drama, many now involved in one way or another with ANC rival the Congress of the People, including the former head of the National Prosecuting Authority (NPA), Bulelani Ngcuka, and businessmen Saki Macozoma and Mzi Khumalo.

Read the full story here.

2. Over at The Times, they’re reporting that the tapes included conversations between Ngcuka and McCarthy. Ngcuka is threatening to take “the legal route” and also that:

It is a matter of grave concern that in a democratic state — which has an entrenched bill of rights, which, among other [things], safeguards the rights of citizens to privacy — you could have surveillance by a state agency and the product of that surveillance be made available to the lawyers of an accused person in a criminal trial.

Oh, the tangled webs we weave. Remember, Ngcuka is accused by Zuma of conducting a vendetta against him while NPA head. Ngcuka also said incredibly indiscreet things about Zuma and his buddies at an off-the-record briefing with black editors. Then he went on to announce to the country that there was prima facie evidence to prosecute Zuma and he would not do so. Can’t Zuma and Ngcuka take it outside and sort out their differences once and for all? Read the full story at The Times here.

3. The Democratic Alliance won landslide victories in two by-elections held in Cape Town, including taking Mitchells Plain from the Independant Democrats. Read the story on News24 here.

4. Something is afoot at the SABC as Christine Qunta, it’s deputy chairman, has resigned. This comes only a week before the board appears before Parliament’s communications portfolio committee to account for various problems at the national broadcaster. Read the story at The Times here.

5. And ANC Youth League President Julius Malema is “actually standing up to reflect where we should go,” says TV personality and former Muvhango actor, Mpho Tsedu (who is clearly looking for a nice fat ANCYL salary). “If there are grey areas, he’s able to stand up and point to those grey areas,” he said. Sage words but what do they mean? Read the story at the Sowetan here.

Popularity: 12% [?]