SA's director of prosecutions treads constitutional minefield as carefully as did the first chief justice of the US

Those of us who mock Tony Leon's voluble nonentity, the Democratic Alliance, have a lot to answer for over the Jacob Zuma affair and we can.

Let me start with a Sunday afternoon two years ago. It was a small gathering just six people at the Pretoria home of a revered black leader. One of the six was Bulelani Ngcuka.

The occasion was partly social, partly intellectual and explicitly concerned with the threat and promise of a patriotic bourgeoisie. Could any such elite ever be fruitful and not venal? The discussion was idealistic, productive and necessary.

As the talk slackened at nightfall, one of the six offered his own house for a follow-up meeting and all of those present assented.

But that would-be host was in fact a bad apple. Less than two weeks later this very same man was spectacularly arrested by Ngcuka's Scorpions; the arrest dominated the business press and gave me first-hand evidence of Ngcuka's personal integrity, evidence that belongs in the public arena at this crucial time in the history of the Scorpions and of our democracy.

We in fact have a national director of public prosecutions in whose mind revolutionary solidarity and clean governance are allies, not enemies. If that bad apple thought social proximity to Ngcuka might confer immunity from prosecution, he was wrong.

Much recent commentary organises itself around a supposed conflict between the Scorpions and the African National Congress or even the presidency. But such critics should read again what President Thabo Mbeki told the judicial symposium in Benoni just last month, with the Constitutional Court in attendance.

In this address, Mbeki aptly compared the first decade of US constitutionalism with our own first South African decade. "If angels were to govern men, neither external nor internal controls on government would be necessary," said Mbeki, quoting Alexander Hamilton, the influential architect of the American republic's first decade of public administration.

"(A) dependence on the people is no doubt the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions."

How could these "auxiliary precautions" principally the US Supreme Court, with its formidable power to strike down legislation possibly enforce governmental integrity without undoing revolutionary momentum?

Mbeki faced the question head-on "I daresay that this was possible because US history placed Alexander Hamilton and John Marshall (the first US chief justice) in the same trench as US citizens, sharing a common experience of oppression, of struggle, of co-operation in the effort to give birth to a nation."

Unlike Willem Heath, a self- regarding white knight with a Bantustan past, Ngcuka was and is in the same trench as our presidency, while also demonstrably prepared to sting anyone within the presidency or elsewhere who would cloak crookedness in the national flag.

Notice the nuance of Ngcuka's achievement. By the carefully calibrated announcement there was a prima facie case against Zuma, but that prosecution would not in fact proceed, Nguka performed a feat of institutional self-assertion mingled with prudential restraint that rivals the famous skill of John Marshall himself in the landmark case of Marbury versus Madison (1803), the case establishing the US Supreme Court's power to strike down legislation.

Faced with what Marshall himself called the "peculiar delicacy" of a highly politicised case, the American chief justice managed to bolster the independence of the supreme court in a politically treacherous time.

So it is worth examining in greater detail Mbeki's recent explicit reference, at last month's judicial symposium, to John Marshall's legacy.

Under US presidents Washington and Adams, the Federalist Party dominated the first decade of US politics, including the judicial appointments of that era. When Thomas Jefferson's Republicans came to power in what contemporary observers explicitly called "the revolution of 1800", the Jeffersonians resisted the old federalist regime's judicial appointments, especially those commissions that had been signed but not yet delivered to federalist appointees.

William Marbury, an aggrieved federalist appointee, sued the Jeffersonian administration, asking the supreme court to force the new Republican government to honour his "old order" federalist appointment.

This placed chief justice Marshall in a delicate position if he ruled in Marbury's favour, the revolutionary Jeffersonians might just mock and ignore him. But if he ruled against Marbury, he might seem to have surrendered to populist currents, again leaving judicial authority in tatters. Like Ngcuka today, Marshall in 1803 did neither and both.

In a legendary balancing act, Marshall struck down the congressional legislation in issue, the Judiciary Act of 1789, which ostensibly gave his own supreme court the power to boss about state officials. He thus established the right of his court to strike down congressional legislation but in a nice twist, the very congressional legislation that he in fact struck down had in fact tried to confer powers upon his own judicial office, so while invalidating congressional legislation he was simultaneously curtailing his own judicial powers this saved him from seeming to overreach.

Nobody could accuse Marshall of a self-serving power grab his self-assertion was its own self-abegnation. He curtailed congressional powers but also his own.

Marshall thus lost the battle and won the war he left the triumphant Jeffersonians alone and declined to assist Marbury but he also laid the foundation for a later and more entrenched supreme court to more robustly curtail congressional excesses.

What Marshall did for the independence of the US Supreme Court, Ngcuka has just done for the independence of the Scorpions. He has won the war by actively asserting the right of SA's legal system to prosecute, if factually justified, a sitting deputy president. Meanwhile he has let pass the dangerous bait the actual battle of dragging Zuma through the courts in a borderline case where a not-guilty verdict would destroy the Scorpions.

Pragmatism in legal institutions is not a swear word but a scarce resource and Ngcuka is thankfully blessed with it. To see the extent of his victory, consider the fact that no sitting US president or vice-president could be prosecuted in a criminal court until after they stepped down.

US presidents enjoy blanket immunity from prosecution, in office. To face prosecution they must first resign like Richard Nixon, who was saved by Gerald Ford's controversial pardon. Or else they must be impeached and removed from office prior to prosecution, like Bill Clinton almost was.

In this country, our leaders now have no such comforts. This is a world-beating expression of the rule of law; it is proper for politicians, not lawyers, to finish off the staggering, disgraceful, Zuma.

Roberts, an author and Oxford and Harvard Law School graduate, formerly practised law at a Wall Street firm.

With acknowledgements to Ronald Suresh Roberts and Business Day.