MINISTER'S REMARKS ABOUT INTERFERING WITH NPA UNACCEPTABLE
Recent remarks by Agriculture, Forestry and Fisheries Minister, Tina Joemat-Pettersson, that "[w]e will speak to the National Prosecuting Authority and the police minister to ensure that all cases of intimidation and public violence are withdrawn", are irresponsible and unacceptable (see report).
Minister Joemat-Pettersson's recent remarks were reportedly made to protesting farm workers in the Western Cape where violent strikes in De Doorns, Ceres, Robertson, Prince Alfred Hamlet and Somerset West have resulted in the death of at least one individual, the destruction of thousands of Rands worth of property and farming crops and ongoing intimidation of workers not engaging in the strikes. Her remarks are not only supporting the perception that violent strikes will be met with impunity, but are made in complete disregard of the independence of the National Prosecuting Authority (NPA) as provided for in the Constitution and the NPA Act.
Section 179 of the Constitution determines that the prosecuting authority has the power to institute criminal proceedings on behalf of the State and that national legislation must ensure that it exercises its functions without fear, favour or prejudice. As such, section 20 of the NPA Act empowers the NPA to institute and conduct criminal proceedings, carry out any necessary functions incidental to instituting and conducting such proceedings and discontinue criminal proceedings. Section 32(1)(b) of the Act hence provides that "no organ of state and no member or employee of an organ of state nor any other person shall improperly interfere with, hinder or obstruct the prosecuting authority or any member thereof in the exercise, carrying out or performance of its, his or her powers, duties and functions". Interference with the NPA or its duty to fulfil its mandate is consequently criminalised by section 41(1) of the Act: "Any person who contravenes the provisions of section 32(1)(b) shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding 10 years or to both such fine and such imprisonment".
The notion that a Minister can "speak" to the NPA and "ask" them to cease criminal investigations or withdraw criminal charges is not only damaging the constitutionally guaranteed independence of the NPA, but if indeed the case, such conduct by a Minister may well be in contravention of the NPA Act.
These kinds of statements also serve to strengthen the perception that the NPA may well be conducting its business according to the ruling party's "requests". The recent withdrawal of charges of fraud and corruption against two high-ranking ANC KwaZulu-Natal officials in the Intaka-case, withdrawal of charges of fraud against former Crime Intelligence boss, Lieutenant Richard Mdluli, but also withdrawal of charges of corruption against President Zuma himself - all without proper reasons provided by the NPA - do little to disprove such a perception.
Violence and violent strikes cannot be condoned, tacitly or otherwise - especially not by a Minister who is sworn to uphold the Constitution. Violence cannot be seen as the norm by which wage disputes may be settled. Such violent acts have to be investigated by relevant law enforcement agencies and where necessary, prosecuted by the NPA - without fear, favour or prejudice - or the interference by a Minister.
Statement issued by Adv Johan Kruger, Centre for Constitutional Rights, November 14 2012
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