Publication	Business Day - Weekender
Date	2006-09-23
Reporter	Tim Cohen
Web Link	www.businessday.co.za

Disagreeing with a judge is a terrible thing for an ordinary mortal to do, so I say this with immense respect and hesitancy: I think Judge Herbert Msimang got the Zuma judgment wrong.

On my reading of it, his judgment seems to be founded on a misconception. The misconception is that without evidence from the disputed search and seizure raids, the state has no case. However, surely, transparently and obviously, the state has a powerful case, even without a single additional document.

Msimang refers to the disputed raids thus: “I shudder to think of the consequences would the Appeal Court thereafter dismiss the appeals, thus upholding the decisions of the High Courts."

Earlier he says: “The only finding that can be legitimately made on the facts is therefore that such evidence is necessary to bolster the case for the prosecution and that it is material."

But why the shuddering? Why the panic about the nonappearance of this “material” evidence? What gives him the impression that the state would have no case or a very weak case without these disputed documents?

Nowhere in the judgment is this elucidated, as it cannot be, since no one knows what this evidence is. We know it to be a voluminous 93 000 documents, but really, not much more.

The current situation is that the raid on Zuma's home and office has been declared illegal; as has the raid on his former lawyer Julie Mahomed, while the searches at the offices of the French arms company Thint were declared legal. All sides are appealing everything or will probably do so soon.

But let's assume, on behalf of Zuma, that all the evidence associated with the raids is totally excluded, what then?

Well, the state is left, if that is the right word, with the evidence it presented in the Shaik case. I’m simplifying here, but if this evidence was sufficient to convict one half of these many transactions, why is it now suddenly insufficient to just try the other half?

When you think about it, the state has a lot more than just the evidence it presented in the Shaik case. Strangely, it now has Shaik’s evidence too.

In his case, Shaik could have denied the many transactions involved in the “generally corrupt relationship" charge had taken place. But he did not. He conceded that practically all these transactions and meetings did take place. In fact, he volunteered, payments were continuing. He just argued (unsuccessfully) the payments were not corrupt.

So the state was starting the Zuma case with a load of ammunition it did not have before the Shaik case began.

But after having come to the conclusion that the disputed evidence was vital ­ notwithstanding the prosecution’s objections ­ Msimang’s decision to remove the case from the roll was then made simple.

He said the state presented no convincing evidence it would win the appeals and it should not “take chances" with the process. Overall, it had unfairly rushed into bringing its charges, he said.

I think the truth is different. I think the Scorpions were under terrible pressure to succeed, along the lines of that old adage that if you intend hunting a lion, you better be sure you have the ammunition to knock it dead, otherwise you’ll end up being lunch yourself.

Hence, they could not resist trying to add every last bit of evidence they could.

Consequently, they have pushed the boundaries of time and legal expedience.

I think they were extremely unwise to do so. But really, in this kind of atmosphere, you can hardly blame them. But of this you can be sure ­ this story is not over.