Zuma prosecution invalid

2008-09-12 00:00

High Court Judge Chris Nicholson pulled no punches in his ruling yesterday that ANC president, Jacob Zuma’s prosecution has been fraught with “political meddling” by high ranking politicians including President Thabo Mbeki.

Harsh criticism was directed at Mbeki over the suspension of National Director of Public Prosecutions (NDPP) Vusi Pikoli last year; Mbeki’s “unjust” though “not illegal” sacking of Zuma as deputy president of the country in 2005 without the chance to defend himself in court; and the apparently “politically driven” decision by ex-NDPP Bulelani Ngcuka not to prosecute Zuma at the same time as Schabir Shaik in 2003 after stating there was a prima facie case against Zuma.

The judge said it was difficult to imagine why the state did not proceed against Zuma on the evidence they had then “given that resulted in a fifteen year sentence for Shaik”.

The conduct of former justice minister Penuell Maduna and present Justice Minister Brigitte Mabandla also came under scrutiny, as did that of Pikoli’s successor, Acting NDPP Mokotedi Mpshe, who, faced with the current decision on Zuma’s fate “must have realised that to disobey the executive would in all probability ensure his own professional demise,” the judge said. He said the timing of the indictment by Mpshe on December 28 last year after Mbeki suffered a political defeat at Polokwane was “most unfortunate”.

“This factor, together with the suspension of Mr Pikoli who was supposed to be independent and immune from executive interference, persuade me that the most plausible inference is that the baleful political influence was continuing. If the NDPP is to be totally independent and perform his functions without fear and favour he should not be liable to suspension by the executive at any given moment.”

Referring to the NDPP’s assertion that Pikoli was suspended because of a breakdown in his relationship with Justice Minister Brigitte Mabandla, Nicholson said: “There should be no relationship with the Minister of Justice - certainly insofar as his decisions to prosecute or not to prosecute anybody from the Commissioner of Police downwards”.

The comment was a reference to allegations that Pikoli’s suspension was linked to an attempt by Mabandla to interfere with the investigation of police commissioner Jackie Selebi.

Nicholson ruled in favour of Zuma and his legal team “on the procedural issue” that the NDPP was obliged to hear representations from Zuma before deciding to prosecute him last December, and that because the state did not the prosecution is invalid.

As the judge exited court, clapping and the singing of Zuma’s signature song, uMshini Wami, broke out in the public gallery as Zuma’s supporters celebrated the verdict.

Nicholson said Ngcuka’s decision in 2003 not to prosecute Zuma with Shaik had “brought justice into disrepute”. Zuma’s complaint was that he was found guilty at the Shaik trial “in absentia” and dismissed as deputy

president.

Judge Nicholson said at common law, had Zuma been an “ordinary employee” and not deputy president it would have been “illegal” for Mbeki to take Shaik’s judgment into account when dismissing Zuma.

However, given Mbeki’s powers under the Constitution to “hire and fire his deputy or cabinet ministers at his will”, it was not illegal, though “unfair and unjust”.

He said at first blush the decision not to prosecute Zuma appeared to be a “favour” to him as second to highest ranking politician in the country. But Zuma claims it was all part of a political agenda in Mbeki’s quest for a further term of office as ANC president.

Nicholson said in South Africa it was a criminal offence attracting a maximum sentence of 10 years imprisonment for prosecutors to allow their judgment to be swayed by extraneous considerations like political

pressure .

Another “disturbing feature” and evidence of “political meddling” by Maduna was the decision to withdraw charges against Thint in the Shaik case. It was clear from the NPA’s own papers that Maduna met with Ngcuka and representatives of Thint to negotiate the withdrawal of the charges, subsequent to which Ngcuka made two trips to Paris.

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