Where to now for Zuma?

2009-01-13 08:17

Pierre de Vos

Constitutional lawyers and political junkies across South Africa must be grateful for Mr Jacob Zuma, his clever and resourceful legal team, and us taxpayers - who are, after all, funding Zuma's various legal applications aimed at ensuring that he never has to face his day in court.

Not only have Mr Zuma's various legal battles provided us with much to skinner and speculate about (not least about Mr Zuma's chances of becoming our next President), they have also clarified very important points regarding the interpretation of the Constitution and the role of our judges in enforcing that constitution and the law.

Judge Chris Nicholson, on the other hand, might feel less charitable towards Zuma and his legal team after reading the Supreme Court of Appeal's (SCA's) latest judgment in the Zuma saga, handed down on Monday. It is anyone's guess how Nicholson might feel about the acerbic and deeply wounding reprimand emanating from Acting Deputy President of the SCA, Louis Harms, on Monday, but I would guess that the learned judge from KwaZulu-Natal must feel rather aggrieved by the way in which the SCA tore his initial judgments to shreds.

From a political perspective, the most important aspect of the SCA judgment is the finding that Judge Nicholson erred by making a finding about the possible existence of a political conspiracy against Mr Zuma. As Judge Harms pointed out, Nicholson himself recognised that "political meddling" was not an issue that had to be determined by the court but nevertheless waded into this politically loaded issue by relying on press reports and completely rewriting the rules of evidence.

As Harms so bitingly states: "in the course of this discussion [Nicholson] changed the rules of the game, took his eyes off the ball and red-carded not only players but also spectators". Nicholson then completely overstepped his authority as a judge, failing "to confine the judgment to the issues before the court; by deciding matters that were not germane or relevant; by creating new factual issues; by making gratuitous findings against persons who were not called upon to defend themselves; by failing to distinguish between allegation, fact and suspicion; and by transgressing the proper boundaries between judicial, executive and legislative functions."

Ouch!

Conspiracy theories

It is important to note that the judgment does not make a finding about the existence of a political conspiracy against Mr Zuma. The SCA faults Nicholson for wading into this highly charged political thicket and points out that the "findings" made by Nicholson about a political conspiracy was mostly based on media speculation. But it explicitly declined to make any finding of its own on whether there was indeed a political conspiracy to charge Zuma or not because, as it points out, there was not sufficient evidence before the court to make a finding on this point which would have been legally irrelevant in any case.

But to some degree it represents a vindication of Thabo Mbeki, who was fired shortly after the Nicholson judgment was handed down. Mr Mbeki seems to have lost his job for no good reason at all (if one set aside for the moment his scandalous attitude towards HIV/Aids) because the High Court had erred in jumping to conclusions about political meddling by Mr Mbeki and his cabinet in the prosecution of Mr Zuma.

It is ironic that Mr Mbeki was not given the same degree of latitude as Mr Zuma, say, who is being supported by the ANC and its allies with the mantra that everyone must be presumed to be innocent until proven guilty.

From a legal perspective the judgment is also rather important as it helps to clarify the legal position regarding the independence of the NPA. The SCA judgment confirms - as I have long argued - that there is no contradiction between the Constitutional guarantee that the National Director of Public Prosecutions (NDPP) must act without fear, favour or prejudice, on the one hand, and the requirement that the Minister of Justice must exercises final responsibility over the NPA on the other.

The SCA pointed out that "although the Minister may not instruct the NPA to prosecute or to decline to prosecute or to terminate a pending prosecution, the Minister is entitled to be kept informed in respect of all prosecutions initiated or to be initiated which might arouse public interest or involve important aspects of legal or prosecutorial authority". This means that the Vusi Pikoli was probably correct when he declined to agree to a "request" by then President Mbeki not to arrest Jackie Selebi on the basis of vague claims of a threat to "national security".

Day in court

Lastly the judgment also deals a blow to Mr Zuma's potential legal moves to avoid his day in court. Mr Zuma's lawyers might well now bring an application for a permanent stay of his prosecution - unless they wish to waste more of the taxpayer's money by appealing to the Constitutional Court. In such an application they will have to argue that it would be impossible for him to get a fair trial at least partly because his prosecution was politically motivated.

But the SCA pointed out that a prosecution will not be wrongful "merely because it is brought for an improper purpose". It is only where "reasonable and probable grounds for prosecuting are absent" that a prosecution would become wrongful and this could only be determined "once criminal proceedings have been concluded".

If Mr Zuma therefore has a strong case to answer (as he clearly has - even Bulelani Ngcuka said so when he declined to prosecute Mr Zuma), it would be irrelevant if that case was only brought to court for political reasons. Mr Zuma's best bet now is to argue that the case has dragged on so long and the reporting in the media has so tainted the minds of every judge in South Africa that it would be impossible for any judge to hear such a case with an open mind and afford Mr Zuma a fair trial.

That is an extremely high hurdle to overcome and few judges would grant such an application. But Mr Zuma does have another ace up his sleeve. If Parliament confirms the firing of the NDPP, Mr Vusi Pikoli, and if President Motlanthe then appoints, shall we say, a more disciplined member of the ANC as head of the NPA, the "political solution" to his legal troubles might yet be found.

Whether that would be good for our constitutional democracy and for the country remains, of course, an open question.

Professor Pierre de Vos teaches Constitutional law at the University of the Western Cape and is the author of the blog constitutionallyspeaking.co.za.

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