National Prosecuting Authority head Shaun Abrahams. Picture: SUNDAY TIMES
CONFLICT: National Prosecuting Authority head Shaun Abrahams has to deal with court cases that threaten the leadership. Picture: SUNDAY TIMES

WHEN those who claim to respect the law hurl abuse at an official for appealing a court judgment, what should be a fight for the rights of all begins to look like the prejudice of a few.

The official is, of course, National Prosecuting Authority (NPA) head Shaun Abrahams, who has been pilloried for appealing the high court judgment that found the NPA’s decision not to prosecute President Jacob Zuma to be irrational.

A chorus of media, opposition parties and social media have been competing to denounce him in the angriest way.

Because independent thought is now dismissed as a sign of desire for government tenders, no one has pointed out that appeals are an important part of our justice system and that those who lose court cases are entitled to use them.

If the chorus had any basis besides prejudice, it was the claim that the ruling was so obviously right that Abrahams had no hope of winning and was playing for time. But that is for the courts to decide. If the chorus is right, his appeal will be thrown out. Actually, the courts may not even allow him to appeal if they find that his case is so weak that it has no chance.

If it is so obvious whether judgments are right and wrong that it is a breach of trust to ask a higher court to decide this, why bother with appeals? Why not scrap courts altogether and let media, politicians and Twitter decide what the law is?

Those who blame Abrahams for appealing often use the courts in their political battles or cheer on those who do. Not long ago, they hailed the Constitutional Court’s judgment that the president had breached the constitution.

Why then do they have a problem with courts deciding whether he has a case? The logical answer is that they believe courts are for the sole use of people like them and should be off limits to everyone else.

This may also explain the silence of Abrahams’s denouncers when the courts are abused, but the victims are not people like them. A while ago, members of the shack dweller organisation Abahlali baseMjondolo, after being subjected, according to KwaZulu-Natal clergy, to unprovoked attacks, were repeatedly hauled into court until the magistrate dropped the charges, finding that witnesses were "unreliable" and "dishonest".

Lawyers who defended the activists concluded that the charges "were based on evidence which now appears almost certainly to have been manufactured".

There was no chorus demanding to know why the courts were being used to bully people the provincial government sees as a problem. When community safety MEC Willies Mchunu became KwaZulu-Natal premier a few days ago, the chorus was interested only in the fact that he supports Zuma. No one questioned why he presided over this misuse of the courts and sided not with the victims, but their persecutors.

Since it is customary to distort the views of anyone who criticises the chorus, the issue here is not Abrahams’s motives — perhaps he is playing for time because he does not want to prosecute the president.

It is that you cannot support the role of the courts in dispensing justice and then insist that only your side can use them.

Many of us may enjoy double standards when they are directed at officials — particularly if they may be protecting the president. But once we say public prosecutors may not use the courts to appeal judgments we like, what is our argument against those who would deny the same right to those who hold the government to account? This point is particularly important now, when the president and his supporters are eager to paint any attempt to hold him and them to account as a suburban prejudice. Their claim should be false: shack dwellers and people in rural areas have as much of an interest in clean and accountable government as the middle class in the cities.

But when his opponents assume the courts are there to serve only them, they endanger the fight for accountability by signalling that the constitution and law are not protections for all, but instruments in the hands of a particular group.

We cannot restore a sense of justice if we deny the use of the courts to anyone, even unpopular prosecutors.

If we do not want the courts to decide whether Abrahams has a case, we have no grounds for insisting that they hear us when we believe we have one too.

• Friedman is director of the Centre for the Study of Democracy