Read on Twitter
So, having read the founding affidavits of CASAC, HSF & Ngalwana SC for their applications to be admitted as amici curiae in the Zondo Commission vs Zuma ConCourt matter, what has become clearer to me is this:
CASAC wishes to traverse the issue of the privilege to not give self-incriminating evidence and/or the right to remain silent in a Commission and HSF wants to deal with the issuing & enforcement of subpoenas.
These are critically important questions of law, which do not only pertain to the Zuma matter. I have no doubt that the court would see these as legal principles of great constitutional value.
And the affidavit of Ngalwana SC. Well, I have so much to say but I will confine myself to a few points.
It seems that Respondent was counseled to not participate in these proceedings (and of course he may have needed to but didn't have to). Instead of participating on his own, the strategy appears to have taken the following: hired a gun & clothed it as amicus curiae.
This despite what the Applicant wants us to believe. He went at great pain to pain this picture in his affidavit.
The Application is unashamedly littered with fatual allegations; the measure of whataboutism upon which this application is founded is astonishing.
The Applicant's views about the Pres are well documented. He's openly opined about how bad he thinks this Pres is. So, only fools will believe that his is an honest application for public interest, the easiest & cheap shot at attempting to found grounds for admission to the Court
Para 36 is shockingly suppositious, especially when the Applicant notoriously submits that "for all I knows...,the Commission has no intention of calling the President to account..."
Yet, the reality is that the Applicant already knew that President is scheduled to appear at the Commission at some point. He is just not happy that the date has not been confirmed yet while the Respondent is compelled to appear.
The Applicant would have preferred that the President appears before the Respondent does or immediately after, as he mentioned in one of his Twitter posts a while ago.
So, the President will appear to account - and no, he will not testify about masonja, marula and how to play a game of snakes and ladders in State Capture Commission whose terms of reference are clear.
Thus, the Applicant's assertion that he is not sure or it is not clear whatever the President will testify about what he (the Applicant) wishes to hear is mischievous.
As we all know, the Commission decides on who to invite, for what purpose and the order of appearance of witnesses and there is little doubt that availability of witnesses is one of the key considerations.
So, why does the SC want to dictate to the Commission about who to call to give testimony and about what?
Well, the entire application is a textbook example of whataboutism: if the courts (ConCourt in this case) can compel the Respondent to appear and answer questions and remain in attendance until excused by the Chairperson, then what about John, Jerry and Jeremiah?
This is so because this strange amicus application is wholly conditional.
While Ngalwana SC hits the right notes about accountability, responsiveness, etc in terms of the relevant Constitutional prescripts, this was only done to arouse the Court's appetite, it appears.
If the court falls for this, it may result in an undesirably long queue of business and political adversaries dragging the Commission to court in an attempt to compel their foes to testify.
Because what they must testify about falls within the Commission's terms of reference. Where do we draw the line? Is this not the same argument that the Commission scope must include the period since 1994 and possibly before that?
Unlike the CASAC and HSF applications which which intend to traverse questions of law, Ngalwana SC application is a classic example of "injury to one is an injury to all" or "pass one pass all" sort of thing, I am afraid.
