That day in court

2008-05-26 00:00

Reading some newspapers in the past fortnight could well have led one to believe that Durban and Pietermaritzburg are trembling with legal intrigue.

Two weeks ago a leading story boldly proclaimed that the National Prosecuting Authority (NPA) has committed its next enormous error — no trial date has been agreed on with Judge President Vuka Tshabalala and the whole case is now threatening to fall apart.

Then one meeting of all the stakeholders later, we are told in a Sunday paper that there is no way Zuma will have his day in court before 2010.

By then, say the political fortune-tellers, he will long have been in the Union Buildings as president.

Meanwhile the mills are grinding away, and rumours are rife.

Why should it be necessary in the first place, people are asking, for the NPA to be negotiating with the Judge President about something like this? Is this, as Zuma followers would claim, yet another example of the utterly weak case the Scorpions are driving against Zuma for political reasons? Or is it, as Zuma critics would want to claim, proof that the Zuma camp is playing dirty, particularly in its cradle of KwaZulu-Natal?

What is Tshabalala’s role, and what are his connections with the power men in the Zuma camp?

In order to rise above the noise of seductive and sometimes predominating rumour, it is necessary to look first at the rules and then at the conventions of the law so that one can decide whether what is manifesting itself here is a real danger of the legal process being undermined where powerful interests are at stake. It is also necessary to consider the current course of events.

Fact number one is that the provincial Director of Public Prosecutions (DoPP) usually arranges court rolls. The judge president then draws up a duty roster that ensures a reasonable sharing of civil and criminal cases for each judge in the division.

There is not customarily any communication between the Judge President and the DoPP about specific cases. That is understandable — each party has its role in the process and the respective duties of the administration of justice and prosecution should not become interwoven. However, there is also a convention, rather than a rule, that in the event of an exceptionally high-profile case, especially one that is expected to be very lengthy, the DoPP informs the Judge President of the fact, so that he can ensure that he sets aside enough time on the duty roster for an experienced (rather than a junior or acting) judge to preside over the case.

This is what the prosecution authority apparently failed specifically to do, even though the Judge President was kept generally informed. And it is apparently this that upset Tshabalala.

Judges’ idiosyncrasies have always been a contributory factor in the administration of justice and no one who has had dealings with Tshabalala can be surprised if this had the effect of inflaming his more patriarchal and traditionalist tendencies. We are all human in this sense; but the only pertinent question is whether the Judge President’s obvious irritation will have an impact on the case. Is he trimming his sails to the ruling wind and delaying the case, as the South African political gossip factory has been quick to suggest?

The short answer to this surely has to be no.

The trial is set for August 4. This negates any speculation (whether positive or negative) about Tshabalala’s preference. Besides, the Judge President is known to be a peacemaker who gets his diverse supreme court working together in ways that other courts, like the Cape Supreme Court, don’t manage to do as well.

All the noise about whether the prosecuting authority made such a big mistake is, therefore, largely unfounded, although it is surely informing some people’s attempts firstly to besmirch the Scorpions and secondly to strengthen the idea of the inevitability of a Zuma presidency in the collective subconscious of South Africans.

The fact is that it is the conventions rather than the rules that have been infringed, and that any consequent irritation has not resulted in a delay of the court case.

This brings us to the state of the court case and the claim that Zuma will become president before he gets “his day in court”.

In legal circles the case is not expected to start properly on August 4, but rather to be postponed. The reason is that two court cases (here and abroad) that could be material to the Zuma case are still pending.

One of them is in Mauritius, where there is an attempt to obtain original documentation which the prosecuting authority believes to be incriminating against Zuma.

The second is in South Africa’s constitutional court, where Zuma’s legal team is questioning the constitutionality of raids on his home and his legal representatives’ offices. With the results of two such determinative court cases outstanding, a request for postponement will have a good chance of succeeding.

The importance of such a delay can be understood against the background of the famous statement that the law is an ass: so, within the legal rules, in the interest of their clients, the law is being used by legal representatives as the vehicle with which to try to strengthen their case to such an extent that they ultimately win and/or achieve their objective.

Zuma’s legal team is using every delaying technique imaginable, since it is in their interest for Zuma not to experience the embarrassment of the dock. His legal team, led by the highly regarded Advocate Kemp J. Kemp on his KwaZulu-Natal home turf, still have a few cards up their sleeve if they want to play for time.

Kemp — known as an advocate who is liked by KZN judges — could argue, for example, that the period over which the case has been dragging out is disadvantaging Zuma’s constitutional right to a speedy trial.

The state, on the other hand, has been trying to extend the case won against Zuma’s financial advisor Schabir Shaik, against Zuma.

According to some legal experts, it is this thoroughness that has resulted in their playing right into the Zuma team’s hands, especially with the searches that are currently being questioned in the constitutional court.

It would have been in their interest, some say, simply to replicate the case — by presenting exactly the same case against Zuma that they had previously won against Shaik.

But the root of the evil — even more so than the complicating of the case — is the decision of Advocate Bulelani Ngcuka, the then national DoPP, not to charge Zuma along with Shaik. The only — rather mysterious — reason advanced was that the state was not sure that it could secure a guilty verdict against Zuma.

Where alleged corruption has taken place, it is preferable that both parties be charged. Because that did not happen, it created space, totally within the rules, for the Zuma legal team to come up with the kind of delaying tactics they are now using.

So that was the big mistake.

How long it will be possible to sustain these delays, only time will tell. In this respect the Zuma legal team have the upper hand, but anyone who claims as a fact that the case will definitely be dragged out until 2010 is taking a chance — it is indeterminable, although not impossible.

What is clearer is the possibility of a further appeal to the Constitutional Court owing to the amount of time that has elapsed with regard to the Zuma prosecution.

It is also clear that, based on the available information, any claims that Tshabalala is acting improperly or is delaying the case are not based on solid facts.

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