Country braces for Z-day

2008-09-11 00:00

The nation today awaits with bated breath the ruling by Judge Chris Nicholson in the Pietermaritzburg High Court that could effectively leave Jacob Zuma free to contest next year’s general election without the cloud of corruption charges hanging over his head.

Although the application lodged by Zuma’s legal team is of a “technical” legal nature based on what is said to be an extremely obscure provision of the Constitution, if the court accepts in its entirety submissions made by Kemp J Kemp, SC, on Zuma’s behalf, it will sound the death knell for the prosecution.

If Judge Nicholson, however, gives the green light to the current decision to prosecute Zuma, it means only that the state has crossed another hurdle before the case can get to trial.

In that case, Zuma and his co-accused, French arms company Thint, have already indicated that they will apply for a permanent stay of prosecution in November, based on different legal grounds. They are expected to submit that the accused cannot get a fair trial, because of the delays in bringing them to trial.

Dean of Law at the University of KZN, Professor Mike Cowling, said that their application too would be of a highly technical nature.

“In that case, we will look at who is responsible for the delays and it may well be argued [by the state] that the delays can be laid at the accused’s own door.”

He said Constitutional Court Judge Pius Langa was “highly critical” of this in his recent judgment concerning the search and seizure warrants obtained by the state to obtain documents needed for the prosecution.

“He basically said the ball is with the courts to ensure that interim applications don’t cause unnecessary delays,” said Cowling.

The issues that will be under the spotlight in today’s judgment, he said, are the initial decision by former national director of public prosecutions (NDPP), Bulelani Ngcuka, not to prosecute Zuma (in 2003), and the subsequent decision taken by Vusi Pikoli to pursue the corruption case against Zuma in the wake of the guilty verdict against Schabir Shaik (Zuma’s former financial advisor).

“I believe no lawyer in the world would have concluded differently from Pikoli that the prosecution should go ahead. There is a clear prima facie case against Zuma based on evidence that has been tested in court that implicated him on the one hand and Shaik on the other.”

Cowling said Zuma’s defence team has picked up on a very obscure section of the Constitution — Section 179 (5) — which, they argue, stipulates that if a NDPP differs with the view of another prosecutor, he can over-rule him/her, but is obliged to first take representations from an accused person.

“No such representations were taken in this case”.

Zuma’s team argues that in these circumstances the prosecution is unlawful.

Cowling said if today’s ruling by Judge Nicholson favours Zuma and is not qualified in any way by the judge, it “can be devastating for the prosecution”.

“If the prosecution is declared unlawful by the court then that is it. It’s the end of the road. The prosecution can’t be reinstituted.”

In his opinion the state would be obliged then to appeal the ruling “in the interests of the nation and the criminal justice system” but this could take between 18 months to two years to be finalised.

Cowling said another possible scenario was if the judge ruled in Zuma’s favour, but qualified his decision by giving the state time to invite representations from Zuma.

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