THE qualitative difference between humans and others is our ability to consider; to consider rather than be driven by inner forces, observes John Ralston Saul in the book, On Equilibrium.
He goes further to say that “to consider is not to reason, although consideration may sometimes have reason within it. Our ability to consider means that to some extent we have the ability to shape events rather than be shaped.”
The decision by the acting National Prosecuting Authority boss, Nomgcobo Jiba, to drop charges against 162 miners yesterday, cries out for consideration.
Prosecutors had told the courts last week that they needed all the arrested mineworkers to remain behind bars because investigators had not finished confirming their addresses. They needed to be remanded for seven days because they faced a serious charge, among others, of murder.
The 270 arrested mineworkers, prosecutors told us, would be charged with killing the 34 people in Marikana and were undeserving of bail. The magistrate, Esau Bodigelo, agreed with the prosecutors and, in doing so, made his own determination that it was in the interest of justice for the miners to remain in custody. A few hours later, the nation responded with indignation because it was indeed absurd to conjure up a charge of murder against people who had survived police bullets.
Many agree that the NPA decision to charge them was ill-considered. The NPA’s explanation was that it was going to rely on the principle of dolus eventualis to prove the case against the mineworkers. This principle makes it easy to convict people accused of murder by arguing that the dead met their fate on account of conduct that the accused should have reasonably foreseen.
The NPA’s decision to charge the miners led to attacks on president Jacob Zuma’s administration. Lawyers for the Friends of Julius Malema threatened a high court application. Shortly afterwards, Justice Minister Jeff Radebe issued a statement that read, in part: “I have requested [Jiba], to furnish me with a report explaining the rationale behind such a decision.
“Section 179 (6) of the constitution reads: ‘The cabinet minister responsible for the administration of justice must exercise final responsibility over the prosecuting authority’.”
Radebe did not say this because he thought Jiba was ignorant of the fact. It was a coded message. He was merely throwing the book at her, saying, not in so many words, that she was creating political pressure for his principal, Zuma, who, in turn, put him under pressure. As I see it, Radebe intentionally put Ziba under pressure and she put North West prosecutions boss, advocate Johan Smit, under pressure and the NPA changed its tack.
And therein lies the problem.
IFP parliamentarian Koos van der Merwe captured it correctly when he noted that it was wrong for the NPA to charge the miners with murder, and even more wrong for it to change its mind when under pressure from politicians.
South Africans must expect Ziba to do her job without fear or favour, to maintain the independence of prosecutorial decision-making and help us believe that the justice system is indeed just.
Radebe was within his rights to ask Jiba for a rational explanation of the charges. That explanation should have been given to him and the matter closed.
For the NPA suddenly to see the light because Radebe and Zuma complained suggests that the two wield more influence and power over prosecutions than they should. The NPA decision makes me wonder whether the prosecutors lied to the magistrate when they said they needed another seven days. Were they being vindictive when they said all the miners should remain behind bars until Friday?
When did they discover that an option existed to release the miners in batches, so those with verified addresses did not have to suffer the ignominy of prison life?
That this freedom is courtesy of presidential or ministerial intervention is disappointing. In the eyes of the miners and many other ordinary South Africans, the miners were released because the minister of justice expressed disquiet about their continued imprisonment.
Extended, this means that those who remain in jail are there because their imprisonment does not upset the minister or the president. Similarly, they can argue that they were being released, just like Schabir Shaik and Jackie Selebi, because politicians wanted them released. This is untenable. And this can’t be how we look at and understand our justice system.
The prosecutors, if convinced of the correctness of their decision to charge the miners with murder, should have shown us that they are prepared to take unpopular decisions – even when these decisions upset politicians and a significant portion of the population.
I expected them to have considered this before they changed colours.
l Read Makhudu’s column in The Star broadsheet on Friday