From: Mervyn Bennun

ANC member  WC 142947

Dear Cde. Jeffery,

You might possibly remember me from 1998, when I was working as a researcher for the ANC’s study group in the Portfolio Committee on Justice and Constitutional Development, while Johnny de Lange and Willie Hofmeyer were joint Chairpersons. I was there during the sabbatical year which I was awarded as part of my retirement package from the Law Faculty at the University of Exeter, where I had been since 1968.

When I was invited by Willie Hofmeyer to work for the ANC’s study group, I felt honoured and was utterly delighted at the opportunity to service a group of brave ANC comrades and leaders such as yourself, who had been on the ground during the darkest of the struggle years and were now building a new South African parliamentary culture.

I am now eighty years old. I have been a member of the ANC for over fifty years. As a student activist, I was one of those who spoke at the Congress of the People.

As a Deputy Minister you undertook to hold your office with honour and dignity and to be “a true and faithful counsellor”.

I refer to your speech in Parliament on the motion to impeach President Jacob Zuma.

Firstly, you said:

“The Constitutional Court judgment stated that the President failed to uphold, defend and respect the Constitution. In the order they stated that his conduct was inconsistent with the Constitution.

“The Court did not find a "serious violation", as section 89(1)(a) of the Constitution requires.

“There is a difference, whether the DA likes it or not, between an inconsistency and a serious violation”.

As a trained lawyer, you know that conduct which is inconsistent with the law is a violation of the law – there are no degrees of illegality. Either one is in breach of a law, or one is not. By analogy, science draws no distinction between women who are with child by saying that one is more “seriously” pregnant than another – either a woman is pregnant, or she is not pregnant.

Even if by some metaphysical jurisprudential eyewash something more is needed to transform President Zuma’s conduct into such that the adjective  “serious” becomes appropriate, then the Public Protector supplied it. She stated explicitly that President Zuma “acted in breach of his constitutional obligations” in terms of section 69 of the Constitution and  that he “violated the provisions of the Executive Members’ Ethics Act and the Executive Ethics Code’s conduct”.

Secondly, you claim that President Zuma acted in good faith when he did not do as the Public Protector found that he should have done.

Conceding for the purpose of argument that there might have been some uncertainty about the force of the Public Protector’s findings and remedial actions and that President Zuma acted in good faith when he failed to comply with them, he nonetheless acted in bad faith by knowingly attempting to retain his undue benefits.

There is no need to rehearse for you the well-documented evidence that he knew that he had benefited improperly. Regardless of the force of the Public Protector’s remedial action, those benefits were improper. You attempted to use the former consideration as a smokescreen for the latter.

Thirdly, you stated that –

“It is not only for President Zuma that the Constitutional Court has declared the conduct of a President invalid. In the Albutt case the Constitutional Court upheld a decision interdicting President Mbeki from granting pardons to perpetrators of political violence, because the exercise of the power to grant pardon was not rationally related to its purpose.

“In the Pharmaceutical Manufacturers case in 2000 the Constitutional Court famously held that President Mandela violated the Constitution (on the basis of acting irrationally), and that his bona fides was no Defence”.

In Albutt v Centre for the Study of Violence and Reconciliation the issue was stated by the Constitutional Court to concern the constitutional power of the President to grant a pardon to people who claim that they were convicted of offences which they committed with a political motive. The question to be answered was whether the President is required, prior to the exercise of the power, to afford the victims of these offences a hearing.

In Pharmaceutical Manufacturers Association of South Africa the question was whether a court has the power to review and set aside a decision by the President to bring an Act of Parliament into force.

Neither case had anything to do with the incumbent President’s personal affairs or benefits, but were wholly concerned with the constitutional principals determining the exercise of presidential executive powers. The cases were thus distinguishable and totally irrelevant to the debate on the impeachment of President Zuma, where the issue was indeed his undue personal benefit as stated by the Public Protector.

Had you been arguing in court, you would have been obliged to draw the attention of the Bench to a potential weakness to be considered. You were addressing Parliament in a debate which included laypersons who trusted you not to mis-state the law in which you are regarded as an authoritative expert, and under circumstances where you knew well that it was unlikely that you would be challenged.

You owed it to Parliament, to South Africa, and to the ethics of your profession to be scrupulous in the discharge of your duty to state the law accurately.

Your reasoning was undignified, dishonourable, and known by you to be misleading.

We have a democratic constitution and parties can lose elections as well as win them. If the ANC were ever in opposition and if the governing party resorted to such specious reasoning, you would be properly outraged.

We are both lawyers who defended in political trials but your contribution was immeasurably greater than mine, which is why I respected you.

I went into exile in 1965, and others must judge how I conducted myself in the anti-apartheid struggle abroad. I know that I owe an accounting to the people I defended – and to others like them.

As for you, I wonder whether you would wish to look your former clients in their eyes and tell them that what you did as a member of  an African National Congress government truly honoured their sacrifices.

Yours,

Mervyn Bennun

ANC member WC 142947