NPA acts against Zuma ruling

2008-09-30 00:00

The National Prosecuting Authority has suggested that Judge Chris Nicholson acted irregularly or erred in his findings of “political meddling” relating to Jacob Zuma’s corruption case.

The NPA has submitted, in papers filed in the high court yesterday in support of its application for leave to appeal Nicholson’s judgment, that the judge was wrong to find that there should be a commission of inquiry into alleged widespread corruption involving senior government figures, including former president Thabo Mbeki; and that Mbeki’s decision to fire Zuma as deputy president was “unfair and unjust” because Zuma had not been given a chance to defend himself.

The NDPP has submitted that none of these findings by Nicholson were issues that had been raised by either of the parties for decision and that they were not material to the resolution of the case — which was to decide whether Zuma’s prosecution was lawful or not.

The state has also attacked Nicholson’s finding that the National Director of Public Prosecutions (NDPP) had to request and consider representations from Zuma before a decision to prosecute him was taken in 2005 and more recently last December.

The NDPP argues that section 179 (5) (d) of the Constitution does not apply to the case because it is not one where the NDPP exercised his powers of review to overrule and reverse a decision of a director of public prosecutions.

The NPA is applying for leave to appeal to the Supreme Court of Appeal against the “whole judgment and all orders” contained in Nicholson’s judgment on September 12.

The NPA submitted that Nicholson committed other irregularities or “alternatively erred” in various findings, including his ruling that the involvement of former Justice minister Penuell Maduna in Bulelani Ngcuka’s decision not to prosecute Zuma was “regrettable and constituted a serious criminal offence”, that there was political interference by Mbeki in December 2007 when acting NDPP Mokotedi Mpshe was contemplating charging Zuma; and that the decision taken in December last year to prosecute Zuma was because of “political meddling” by Mbeki and members of his cabinet, namely Maduna and current Justice Minister Brigitte Mabandla.

The state also challenges Nicholson’s finding that Ngcuka’s statement in 2003 that Zuma would not be prosecuted, despite there being a prima facie case of corruption against him, was “bizarre and unconstitutional and brought justice into disrepute”.

The state submitted that Zuma’s allegations of “bad faith” contained in his affidavit were irrelevant and “in many instances based on hearsay evidence or no evidence at all” and that as a result the NDPP brought an application to strike them out.

The state says that when the case was argued in court before Nicholson on August 4 and 5, the parties were agreed that it was not necessary for the court to determine the correctness of Zuma’s allegations of bad faith.

The state maintains that the “political” issues on which the court made findings were not canvassed by counsel in written or oral submissions to the court, save for the “limited submissions” by Zuma’s counsel relating to his allegation of a political conspiracy.

Yet, they say, these findings constituted a substantial part of the judgment.

The NPA submits that it is undesirable for a court to deliver a judgment “with substantial portions containing issues never canvassed by counsel”, and that the court violated a legal principle (the audi alteram partem principle) by drawing inferences of misconduct or bad faith against the NDPP without affording them the opportunity to respond.

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