Reading Makhudu Sefara’s opinion piece on the ANC position on the motion of no confidence by a group of opposition parties against President Jacob Zuma, one can only conclude that he has just emerged from a period of self-imposed hibernation (“Motion is anything but frivolous”, The Star, November 16).

For the editor of a newspaper that has published many reports detailing the reasons the ANC believes the motion is frivolous, he exhibits ignorance on the motivation we have advanced for our stance.

On October 23, Cope leader Mosiuoa Lekota claimed through a statement in the House that “the president’s office defied an order by the Supreme Court of Appeals to hand over the abbreviated transcripts of the terms that permitted criminal charges to be dropped or withdrawn against him”.

On the basis of this claim, Lekota called for “impeachment procedures” to be instituted against the president for “defying a lawful judicial order”.

Lekota subsequently indicated in the media that his party would invoke section 89 of the constitution to impress upon Parliament to remove the president.

In terms of section 89(1), the president can be removed from office on the grounds of (a) a serious violation of the constitution or the law; (b) serious misconduct; or (c) inability to perform the functions of office.

A member of Parliament who agitates for the removal of the president in terms of this section is therefore required to provide factual evidence to satisfy these grounds provided for in the constitution.

In terms of this section, Lekota would have been required to table a substantive motion before the National Assembly, with an attachment of irrefutable evidence proving the grounds for removal of the president, for consideration.

By merely making disparaging allegations against the president without following this due process, Lekota was in blatant violation of parliamentary rules and procedures – which are informed by section 89 of the constitution.

The freedom of speech and parliamentary privileges, which protect them from legal actions arising from statements they make in Parliament, are subject to the rules that govern Parliament.

It is for this reason that Lekota was subsequently ruled out of order and ordered to withdraw his statements.

The second transgression of Lekota’s statement of allegations is that he deliberately misled Parliament by presenting false information before the House.

The Supreme Court of Appeal did not issue an order against the president or the president’s office for the handing over of tapes, as Lekota claimed.

In terms of the judgment of the Supreme Court of Appeal in the DA vs the National Director of Public Prosecutions case, the judicial order was directed at the “first respondent” – which is the National Prosecuting Authority.

There was no order by the Supreme Court of Appeal against the president or his office to produce any record or documents.

Even if Lekota meant that the president should force the NPA to hand over the tapes, this would still be misleading as in terms of an act of Parliament the NPA is an independent institution and does not take instructions from the president.

It was on this basis that a motion of censure was tabled against Lekota for misleading Parliament, which is a serious transgression in terms of the rules.

On November 7, Lekota’s “impeachment” idea, which he said would be proposed in terms of section 89, metamorphosed into the so-called motion of no confidence by the DA’s Lindiwe Mazibuko on behalf of a group of opposition parties, this time in terms of section 102.

Several observations can be made from Lekota’s change of tactics – if not antics. First, in Lekota’s realising that his procedural transgressions in pursuit of his obsession against Zuma discredited his impeachment idea, he gave it a new face in the person of Mazibuko and several miniature opposition parties.

Second, realising that there is no factual basis for this motion, he backtracked on section 89 in favour of 102 of the constitution. While section 89 requires that a removal of the president be substantiated by factual evidence, section 102 is open to abuse due to its silence on what grounds a motion of no confidence should be advanced. This reinforces our conviction that the motion is frivolous and baseless.

Several accusations were made in the opposition parties’ motion as grounds for the president’s removal.

The accusations include the Marikana tragedy, the Nkandla upgrade, the economic challenges including unemployment and the country’s downgrades. These are spurious claims not borne out by fact.

It is malicious to suggest a link between the Marikana tragedy and the president.

There is a judicial commission of inquiry that is under way to determine the cause and the circumstances that led to the tragic events at the Marikana mine.

This commission has neither concluded its inquiry nor made findings.

The allegations relating to Nkandla are the subject of an investigation by the Department of Public Works, the public protector and the auditor-general. These are not investigations of the president or his office, so can’t be used to cast aspersions on his person and integrity of his office.

The allegation relating to the economy and unemployment are absurd. South Africa, as part of the globalised economy, is one of the many countries affected by the world economic downturn of 2008. In fact, our prudent and tough fiscal regulatory systems have cushioned our domestic economy from the adverse effects of this downturn.

Barack Obama, the president of the country where the recession started, never had to be embarrassed by the opposition Republicans with a motion of this nature.

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Pretoria – It was mere perception that the National Prosecuting Authority was politically influenced, acting head Nomgcobo Jiba said on Tuesday.

“These are perceptions. We strive to ensure we prosecute without fear, favour or prejudice,” Jiba said in Pretoria.

“That should be applicable to everyone in this country.”

Jiba did not elaborate on the issue of “spy tapes” which reportedly led to criminal charges against President Jacob Zuma being withdrawn.

“That case is a matter before court.”

The acting national director of public prosecutions was speaking at an Institute for Security Studies seminar.

She said the NPA did not withdraw charges against people without reason.

Charges could be withdrawn for a variety of reasons. This did not mean the case had been finalised, and therefore could be brought back to court at a later stage.

“We do not merely withdraw charges against accused people… there is vigorous consultation and processes to be followed,” Jiba said.

“We must take care when deciding to prosecute.”

She was responding to a Sunday Times report over the weekend regarding the dropping of corruption charges against Zuma in 2009.

She said she was not trying to defend the decisions made by former national directors of public prosecutions (NDPP). However, there were policies in place which had to be followed.

“There will always be some form of unhappiness from the other side (when decisions are made).”

The NPA’s decision to drop the charges – taken by then acting NDPP Mokotedi Mpshe – came a month before Zuma was elected president.

The Sunday Times reported that the country’s top prosecutors at the NPA were overwhelmingly in favour of pressing ahead with the corruption case against Zuma.

They also dismissed the so-called “spy tapes” as irrelevant, just days before the charges were dropped.

This was revealed in more than 300 pages of internal e-mails, memos and meetings, the paper reported.

In March, the Supreme Court of Appeal ordered the NPA to hand over a record of all documents, recordings, materials and evidence that led to criminal charges against Zuma being withdrawn. The tapes were yet to materialise.

Jiba said just because there was prima facie case did not mean there would be prosecution.

She used the example of a woman who had heard a noise at her window, thought someone was breaking in and shot the person, who turned out to be her husband.

“How do you prosecute something like that?” Jiba asked.

“There are instances were there is a prima facie case but you can’t prosecute.”

Jiba said the NPA was guided by its policies.

Martin Schoenteich, doctoral student at the criminals justice programme at the City University of New York, said the judiciary could not force the NPA to prosecute.

However, the courts could review the processes which had been followed in deciding whether to withdraw charges.

There were other checks and balances; these included Parliament, opposition parties, media and civil societies.

Jiba admitted there were problems facing the NPA, but efforts were being made to improve things.

“We are not sitting around doing nothing. We acknowledge the criticism in the way we measure our performance,” she said.

The NPA measured its performance by the number of convictions.

“We have yet to find a perfect system.”

Jiba said challenges included the lack of funding to Legal Aid.

“We have noted that there has been a decline in performance.” – Sapa