Publication: Business Day Issued: Date: 2006-02-14 Reporter: Karima Brown Reporter: Ernest Mabuza Reporter: Vukani Mde

Zuma Judge Steps Aside to Defuse Bias Charges

 

Publication 

Business Day
Date 2006-02-14

Reporter

 Karima Brown
Ernest Mabuza
Vukani Mde

Web Link

www.businessday.co.za

 

Transvaal Judge President Bernard Ngoepe yesterday recused himself from the rape trial of Jacob Zuma in an attempt to protect “the credibility of the judiciary”, defusing a potentially powerful weapon in the hands of Zuma’s political supporters.

His move will force Zuma’s supporters to accept the legitimacy of the trial and effectively binds them to accept its outcome.

Ngoepe’s shock decision to “step aside” in the high-profile case was based on explicitly political considerations regarding perceptions that Zuma would not get a fair hearing.

Ngoepe rejected all legal arguments for his recusal but conceded that the context of political tensions around the trial could lead to perceptions of bias.

“The legal points for the recusal are not sound and do not hold. However, this is no ordinary matter and is a high-profile case. These considerations invite me to look beyond the personal fears of (Zuma) and take a broader view,” Ngoepe said.

Zuma’s legal team argued that Zuma harboured fears that Ngoepe may not be impartial, after the judge president granted the National Prosecuting Authority (NPA) warrants for the search of properties linked to Zuma last year. This related to Zuma’s corruption trial, which is set to be heard later this year.

But Ngoepe said that in granting the warrants he made “absolutely no finding” relating to Zuma’s credibility. The warrants were based on facts placed before him by the NPA with no response from Zuma’s defence, which prevented him from ruling on the merits of the state’s corruption case. There was therefore no connection between the two trials that could justify Zuma’s fears of bias, Ngoepe said.

He was also at pains to explain how he was chosen to preside over the case initially. He said the decision was made jointly with his two deputy judge presidents.

“We agreed that it was a matter that the judge president, as head of the court, should hear. By accident of history I happen to be that person.”

His explanation was meant to dispel perceptions that he had appointed himself to the case.

His appointment was in line with a standing convention that “the most senior available judge” should hear such a high-profile case. Cases involving former president Nelson Mandela as well as the Chris Hani murder trial were heard by the then-sitting judge presidents, he said. Ngoepe said Zuma’s former high office meant that the most senior judge in the Transvaal division had to preside.

The appointment of judges to hear Zuma’s two trials has become politically contentious following the conviction of his financial adviser, Schabir Shaik, by Judge Hilary Squires last year. Zuma supporters decried Squires as a “Rhodesian apartheid judge” and questioned his impartiality.

The appointment of Ngoepe to hear Zuma’s rape trial last week was immediately seized upon by Zuma supporters, who suggested that Ngoepe could not “appoint himself” to hear the case, given his role in granting the NPA warrants.

The Zuma rape case and the controversy around the choice of judge also comes amid a tense standoff between government and the judiciary over issues related to transformation and the political independence of the bench.

Thousands of Zuma’s supporters who had gathered outside the court greeted Ngoepe’s dramatic recusal with cheers and interpreted it as a victory in their fight to ensure a fair trial for Zuma.

“We will continue to monitor the new judge and we’ll be here every day to ensure Msholozi gets a fair trial,” said Buti Manamela of the Young Communist League while addressing the crowds.

However, privately Zuma’s key backers acknowledged that the reasons Ngoepe gave for his recusal had “ring-fenced” the trial from political interference and bound them to its outcome.

The trial continues today with Deputy Judge President Jeremiah Shongwe set to replace Ngoepe.

Shongwe’s first order of business will be to listen to an application by Zuma’s defence for a two-week postponement of the trial.

With acknowledgements to Karima Brown, Ernest Mabuza, Vukani Mde and Business Day.