Publication: Sunday Independent Issued: Date: 2006-08-27 Reporter: Jeremy Gordin Reporter:

Judges' Aside Could Prove Fateful for Zuma and Thint

 

Publication 

Sunday Independent
Date

2006-08-27

Reporter

Jeremy Gordin

Web Link

www.sundayindependent.co.za

 

Certain obiter dicta, remarks by judges not directly related to arriving at a judgment but made in passing, went largely unnoticed this week - but they might prove to be among the most significant words spoken in court when argument resumes on September 5 in the trial of Jacob Zuma and the French arms manufacturer Thint on charges of corruption and fraud.

Certainly they will be quoted over and over again by the defence teams.

The obiter dicta came this week from a full bench of the supreme court of appeal - judges Craig Howie, Louis Harms, Piet Streicher, Mohamed Navsa, and Jonathan Heher - in a judgment written by Howie, the court's president.

Turning down an application by the SABC that it be allowed to televise Schabir Shaik's appeal from September 25 to September 29, the bench noted that the National Prosecuting Authority (NPA) had objected, as had Shaik, to live TV coverage.

The court said that among the state's objections to TV coverage was that the testimony of certain witnesses who had given evidence in the Shaik trial would come under scrutiny.

The problem with this, as far as the NPA was concerned, was that the same testimony would probably be given in the Zuma trial - and the NPA did not want discussion of that testimony to go on national TV before, or at the same time as, it was being led in the Zuma trial.

The court said in its judgment on Thursday: "Considering next the problem of the pending Zuma trial, it is not apparent why the prosecuting authorities did not charge both accused [Shaik and Zuma] in one case *1. Their present predicament could well be of their own making…"

Said one attorney who has been keeping an eye on the Zuma-Thint trial: "The court is saying that the state could have avoided this situation in which it does not want testimony from the Shaik appeal to be televised."

He said that, given that one of the pillars in the argument of the defence teams of both Zuma and Thint was that justice delayed was justice denied *2, it was certain that both defence counsels would talk a great deal about the prejudicing of their clients by a delayed trial. They would point out that even the supreme court of appeal had asked why Zuma had not been prosecuted along with Shaik.

In 2003 the state publicly stated *3 that there was a prima facie case against Zuma but that it had chosen not to prosecute him. The charges against Thint were withdrawn in 2004 *4.

The appeal court's judgment was issued on Thursday, two days after both Zuma and Thint had responded to the affidavits of Vusi Pikoli, the national director of public prosecutions; Bulelani Ngcuka, the former national director; Penuell Maduna, the former minister of justice, and Leonard McCarthy, chief of the Scorpions.

The four men were replying, for the state, to the applications made by Zuma and Thint for the case against them to be struck from the court's roll.

In his response to Maduna, Pierre Moynot, of Thint, said he was unable to understand why Maduna had denied that Thint had been told by Maduna and Ngcuka that the NPA had no interest in charging the French company *4.

With acknowledgements to Jeremy Gordin and Sunday Independent.


*1       The reason was that Minister of Justice Maduna and NDPP Ngcuka were at that stage trying to shield their political buddy from prosecution.

After the emphatic judgment against his co-conspirator, it became almost impossible not to charge him.


*2      This is simplistic. Two parties are entitled to justice, the Accused as well as The People, represented by The State.

Additionally, there could well be other charges against Zuma, arising out of occurrences and evidence obtained subsequent to the Shaik investigation.


*3      In this case The People were represented by two asses.


*4      Now officially promoted to jackasses.