The Zuma decision a pyrrhic victory?

2009-04-06 00:00

We have to accept the decision made today, but most lawyers will be uncomfortable because the matter is left open. “We hoped for closure” will echo on the steps of the courthouse and on the way up to financial institutions that start to absorb the implications of the “Zuma Decision” as it may be remembered in time.

The spokesman was eloquent and took us through the issues easily. He clearly knew his task. He had to concede that the accused person in his sights had constitutional rights that would be hard to defeat. This is probably correct, as Judge Nicholson found, albeit for different reasons.

This will not rest easily with the political opposition and lawyers look forward to a pile of work and some new law in the making. It is likely that there will be a judicial review of the decision of the prosecution under the provisions of the Promotion of Administrative Justice Act. This is likely to be preceded by a request for reasons for the decisions, even though these were lengthy in the public broadcast. However the time for compliance with the request for reasons, or a response by the prosecuting authority will expire after the elections.

Constitutional rights are hard to define when applied to individuals. There are a few constitutions that are capable of personal application in the way it has been applied in the Zuma matter.

The articulation of human rights is a little obscure at times in the laws of a country as the common law may be at variance with its constitution. If this does happen, it is the duty of judges and those that make the law to recognise this. In South Africa, the Constitution is the supreme law and is binding on even the highest of judges.

Prosecutors are subject to strict controls and as has been proved in this case, are monitored, even to excess and may have caused the collapse of the state’s case.

Opposition parties are baying for a private prosecution. They will not face the same procedural constraints. If they pursue this, they will be making new law. The private prosecution of an aspirant president or sitting president is unprecedented. This normally signals a coup, revolution or fight for freedom from oppression. In this case it is a good threat to make in the lead up to the elections but will be forgotten in a week.

Mr Zuma may face private prosecution if the Director of Public Prosecutions issues a nolle prosequi, a necessary precursor to potential private prosecution in the process. It is not likely that this will happen before the election, so there is no political capital to be gained, and probably not after when he is in charge. The “Zuma File” is likely to be kept open while he is in office. Until it is closed, there will be no nolle prosequiI by the authorities or in the minds of the public.

His risk is that his term will be surrounded by guilt and attack by all, even by those that have put him in office.

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