I refer to the reply from Minister of Justice, Jeff Radebe, to my article in Vol. 4 of the Thinker (see here - June edition). I should be grateful for space to respond to what he has written.

In his original article, published in the Sunday Times on April 12 2009, Minister Radebe clearly claimed that the law made it impossible for the courts to review the decision by the NPA not to proceed with the prosecution on various charges against Jacob Zuma. He cited cases which he claimed supported this. In my reply, published in Vol. 4 of the Thinker and elsewhere, I pointed out that under the Promotion of Administrative Justice Act 2000 (PAJA) an application for such a review was possible and legitimate, though it was another matter whether it would succeed or not in any particular case.

I also explained why the cases Minister Radebe cited were irrelevant and could not support the conclusions of law he claimed for them. In his response, he repeats what he said initially without taking matters further and I see no need to repeat what I wrote. What appeared in The Thinker was edited but the full text can be found here.

I note that Minister Radebe has now conceded (in para. 3 of his reply) that PAJA ensures that an application to review the NDPP's decision not to prosecute is one that the court can properly consider - precisely the opposite to what he wrote in his original article and to which I replied.

However, I note that Minister Radebe still claims - with some heat - that the cases he cited are relevant and provide him with authority and support. In other words, he still relies on them to sustain that which he has just conceded is in error and ill-founded and has accordingly abandoned.

The Policy Directives which bind the NPA require it to take its decisions uninfluenced by (amongst other matters) the status and political beliefs of an alleged offender. As Minister Radebe now agrees, the courts alone may review any decision not to prosecute.

While the Minister of Justice must exercise final responsibility over the prosecuting authority in accordance with the provisions of the Constitution and the NPA Act, this does not render the NPA the property of any political party. However, as Minister of Justice he has identified himself with the interests of Jacob Zuma to stop the prosecution against him.

From his ministerial desk, he has voiced his approval of the NPA's decision and condemned those who are seeking to exercise the right - just conceded by him to exist - to apply to review it. Instead of stating that he will abide by the decision of the court, he is clearly of the view both in his original text and in his reply to my criticism of it that the application for a review is ill-founded in law and politically reprehensible.

I pointed out that the Constitution describes the courts but not the NPA as "independent", and that hence the word has a different meaning and significance if used colloquially in relation to the NPA. Even if I am incorrect, as Minister Radebe claims that I am, and the word can be used in the same manner to describe the NPA as he insists, by involving himself thus in Jacob Zuma's affairs he has brazenly disregarded the implications of his own arguments about the status of the NPA.

The situation he has created is that, in advance of any hearing and judgment, the Minister of Justice has now stated what in his opinion the decision of the court ought to be. In the not-impossible event that the review application is successful, the Minister of Justice will have already stated his disapproval of such an outcome.

This involvement of the executive in the prosecution process and the independence of the judiciary, both of which characterised the apartheid past, is precisely what the Constitution and the NPA Act are designed to prevent. The threats to the status of the NPA, to the independence of the courts, and to our democracy need no spelling out.

Further, this augurs ill for the plans to involve the executive in the administration of the courts.

I feel no need to respond to Minister Radebe's comments about the quality of my legal scholarship and research, as his remarks are characterised by pompous bluster and ad hominem abuse.

What I do object to, however - and I wish my protest to resonate in the angriest tones possible - is the reflection on my colleagues in the Law Faculty at the University of Cape Town, for it is they who invited me to join their ranks for a time as an Honorary Research Associate and extended the warmest friendship and hospitality throughout my appointment.

They include some of South Africa's most distinguished legal scholars, they had my curriculum vitae before them, and anyone who suspects that my hosts have abused the resources they are entrusted with is free to consult it and form their own conclusions.

Regardless of whether my views are well-founded or not, it is truly dreadful that a leader of the ANC and a Minister of State should sink to personal insult and discourtesy in response to reasoned criticism. Such conduct seems increasingly to characterise the ANC.

I learned a different style from those who preceded Minister Radebe in leadership.

Mervyn E. Bennun is an Honorary Research Associate, Faculty of Law, University of Cape Town

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