NDPP: Presidency's decision to appeal the right one - ANCWL

League says ruling will set a precedent where judges can overrule explicit provisions of constitution


The African National Congress Women's League (ANCWL) has noted the judgment by Judge Dunstan Mlambo of the North Gauteng High Court in relation to the appointment of the National Director of Public Prosecutions (NDPP). 

First and foremost the ANCWL reiterates that it subscribes to the independence of the Courts and respect that the Courts subject themselves only to the Constitution and the law, which they must apply impartiality and without fear, favour or prejudice as stipulated in Section 165(2) of the Constitution of South Africa, 1996 (as amended). 

The ANCWL is of the view that Judge Mlambo might have errered to appreciate section 179 (1) (b) of the Constitution of South Africa, 1996 (as amended) which dictates that NDPP, who is the head of the prosecuting authority is a appointed by the President as the head of the National Executive. Judge Mlambo might have also errered to appreciate section 91 (2) Constitution of South Africa, 1996 (as amended) which makes provision on who assigns powers and members of the Cabinet. 

The ANCWL's understanding is that as per Constitution of South Africa, 1996 (as amended) the only time the Deputy State President can fulfill the responsibilities of the State President is when he / she is assigned those responsibilities and powers by the President or as defined in section 91 (2) or when the President is absent from the Republic or otherwise unable to fulfill his / her duties, or during a vacancy in the Office of President as per section 90 (1). Currently His Excellency President Jacob Zuma is in South Africa, able to fulfil his duties and there is no vacancy in the Office of the President. 

Not seeking to cast doubts / aspersions against any Judge in the country, the ANCWL is alive to the words of the first black Chief Justice of South Africa, late Chief Justice Mahomed. When addressing the International Commission of Jurists in Cape Town in 1998 he said " .. _Judicial power is potentially no more immune from vulnerability to abuse than legislative or executive power but the difference is this: the abuse of legislative or executive power can be policed by an independent judiciary but there is no effective constitutional mechanism to police the abuse of judicial power. It is therefore crucial for all judges to remain vigilantly alive to the truth that the potentially awesome breath of judicial power is matched by the real depth of judicial responsibility. Judicial responsibility becomes all the more onerous upon judges constitutionally protected in a state of jurisprudential solitude where there is no constitutional referee to review their own wrongs.."

The ANCWL welcomes and support the decision by the Presidency to appeal the judgement. If not appealed, it will set a precedent where Judges can override provisions of the Constitution and that will have negative impact on our Constitutional democracy. 

Statement issued by Meokgo Matuba, ANCWL Secretary General, 8 December 2017