Publication: Business Day Issued: Date: 2006-11-14 Reporter: Karima Brown Reporter:

When Courts Fall Prey to Lie of ‘Common Knowledge’

 

Publication 

Business Day
Date 2006-11-14

Reporter

 Karima Brown

Web Link

www.businessday.co.za

 

Imagine you are a judge of the Supreme Court of Appeal. You have to decide on a complex criminal case involving large sums of money tied up in accounting and business practices that the layman, or yourself for that matter, will not easily understand.

Complicating the case further is the involvement of the country’s former deputy president, and the very real possibility that he may still be criminally charged, partly as a result of the decision you are about to make.

So before deciding on the merits of the appeal you ask yourself: what are the established facts? Well, you know that there was “a generally corrupt relationship” between the appellant and the said politician. You know this because, well, everyone knows it. It’s in every newspaper, it’s on TV, on radio, on the lips of ordinary people in the street. Hell, the man was fired from the Presidency because of this “generally corrupt relationship”. Simple enough.

Except that the only acceptable source for such a finding for a Supreme Court judge is the original trial court. Not the media, not public opinion, and not the president’s actions. The reason the standards for establishing any fact ­ even an incidental one ­ are so high for courts, is to guarantee our common right to a fair trial. We must be certain that the court before which we are due to stand has no preconceived ideas about the case it’s hearing. That it will disregard even things that are so generally accepted that they have passed into common understanding.

Two Mondays ago, a full bench of our Supreme Court proved incapable of fulfilling that basic requirement. That, in essence, is the meaning of The Weekender’s story, I never said Jacob Zuma was corrupt ­ Squires (November 11).

Don’t believe Billy Downer, the lead prosecutor who put Schabir Shaik away, when he says it’s only a “storm in a teacup”. Don’t believe legal and political analysts who say the Supreme Court’s mistake was a “technicality” or “semantics”. We are a constitutional state governed by strict rules. One hopes that senior prosecutors, Supreme Court judges and political pundits understand what this means.

The evidence is not encouraging.

Judge Hilary Squires said the relationship between Shaik and Zuma was “mutually symbiotic”. He then went on to find Shaik guilty of corruption. As an ordinary person, you might conclude that there is an inconsequential difference between that statement and the prosecutions’ description of the relationship as being “generally corrupt”. The difference in law, though, is a gaping chasm. Squires’ original words leave undecided the possibility of Zuma’s own corrupt intent. “Generally corrupt relationship” does not. It binds both men with shared evil intent. It is the sort of statement a judge should never make. It is the sort of statement the Supreme Court should never parrot so mindlessly.

That’s as far as the legal ramifications of the Supreme Court’s mistake go. It will not change Shaik’s fate. He could try to take their decision on review, and argue the court did not fully apply its mind. But that would be a hard sell, since the facts of his case remain unchanged. The political ramifications are another issue altogether.

Let’s not forget the legitimacy of the South African judiciary does not enjoy wide acceptance. Even the African National Congress has had occasion to rail against SA’s untransformed bench. Government is constantly having to defend judges and their findings against public political assaults. By being so sloppy, so callous and unprofessional, the Supreme Court has shot the entire judiciary in the foot. Senior lawyers, law professors and judges who attempt to pooh-pooh the controversy and pretend that it means nothing, are not doing the institution any favours.

Arrogant, smug schoolboy solidarity and other knee-jerk responses will only increase suspicions that the courts in the Zuma matter have been at best incompetent and at worst, malicious.

How do we deal with ordinary people’s perceptions that Zuma is being legally pursued as part of a political plot? After all, the highest criminal court can disregard evidence and make findings that were never part of the original trial. How impartial are they?

We should also never forget that SA’s former chief prosecutor demolished the separation between executive and judiciary when he appropriated for himself the right to decide that there was a “prima facie” case of corruption against Zuma, a finding that can only be made by a court of law.

Legally, the cumulative effect of all these bungles is that the Constitutional Court will surely be asked to decide whether Zuma can ever be prosecuted fairly. The political effect is that these outrages may no longer look like bungles at all, but part of a concerted attempt to get rid of Zuma, whatever the cost to our constitutional state.

• Brown is political editor.

With acknowledgement to Karima Brown and Business Day.


One day this author will re-read her article - and be embarrassed, very embarrassed.