|
Mpshe takes the law into his own hands |
| Publication |
Business Day |
| Date | 2009-04-18 |
| Reporter | Carmel Rickard |
| Web Link | www.bday.co.za |
No, Mokotedi Mpshe , it won’t do. I’ve re-read your statement announcing
your decision not to go ahead with the prosecution of Jacob Zuma.
I was searching for a sentence that caught my attention at the time because of
your passionate phrases. Now that sentence takes on a new importance.
“As an officer of the court,” you said, “I feel personally wronged and
betrayed.”
By stressing that you were an “officer of the court”, you conjured up the
responsibilities of such a person. It gave you a special status and seemed to
add gravity to the situation; it called up the dignity of your position and
rested your outrage on that dignity. You were invoking the weight of the
judicial process, the judicial system, to back your decision. We felt you were
really affronted.
Now, however, the tables are turned; it is the rest of us who feel wronged and
betrayed. Thanks to astute investigations , we know that you cribbed the nub of
your argument from a source you did not acknowledge. You presented it as your
own work .
In front of us all, you proclaimed the standards you set yourself. Now we have
to ask have you behaved as befits an officer of the court?
When lawyers argue a case, they are duty bound to point out to the presiding
officer any decisions they may be aware of that go against their contentions.
Yet the case you cribbed should actually be cited as precedent contrary to the
decision you took. Judge Conrad Seagroatt, whose work you quoted without
acknowledgment, sat in a matter as a single judge. His controversial decision
was taken to the Court of Final Appeal and heard by five judges, among them
Chief Justice Andrew Li of Hong Kong.
Sir Anthony Mason, who wrote the appeal, said that leave to appeal had been
granted on the grounds “that points of law of great and general importance were
involved in the decision and that it was reasonably arguable that substantial
and grave injustice had been done”.
The five appeal judges unanimously agreed that Seagroatt’s approach “indicates
that he was more concerned to criticise the inadequacy of the (inquiry that
formed part of the dispute) than to ask the correct question”.
Now, I ask myself, were you not similarly more concerned to criticise the
actions of your former colleagues than to ask the correct question whether you
should usurp the role of a court in making this decision?
The appeal court added that Li’s failure to approach the matter correctly
“indicates that he did not apply the requisite standard of proof and that his
adverse conclusion was flawed on this account as well as on the ground that
material findings of fact which he made cannot be supported”.
This is hardly support for your proposition, yet you did not disclose that the
judge whose remarks you quoted to justify your decision had been so thoroughly
trounced on appeal.
The appeal court judges quoted a leading Canadian decision: a stay of
proceedings is only appropriate “in the clearest of cases". And they added that
even if a court made a “finding” of bad faith, that finding would not
necessarily conclude the matter.
Since you based the decision to stay a prosecution on the conclusion that others
had acted in “bad faith” (this was your own view, not a “finding” of a court),
should you not have disclosed to us these remarks of the appeal court?
Did you deliberately keep the source of your argument from us, I wonder, to
sound more erudite? People lose their jobs for plagiarism; it is intellectual
theft. And you want us to regard you as a principled officer of the court.
Or did someone else, who researched and wrote your argument, neglect to tell you
whose judgment it was, and that there was a successful appeal?
Either way, we feel tricked and toyed with. You owe us an explanation for you
are an officer of the court.
“We know that you cribbed the nub of your argument from a
source *1 you did not
acknowledge. You presented it as your own work ”
With acknowledgements to Carmel Rickard and Business Day.