Publication: The Star Issued: Date: 2006-02-14 Reporter: Jeremy Gordin Reporter: Reporter:

Recusal a Hollow Zuma Victory

 

Publication 

The Star
Date 2006-02-14

Reporter

 Jeremy Gordin

Web Link

www.thestar.co.za

 

Judge rejects defence team's stand on credibility

Many people will assume that yesterday's bombshell decision by the Judge President of the Transvaal division, Bernard Ngoepe, to recuse himself from Jacob Zuma's rape trial was a clear victory for the Zuma camp.

Even the Zuma camp may be thinking along the same lines: certainly the almost shy grin that flickered across Zuma's face as he left the courtroom would lead one to believe that this is what the former deputy president and his advisers may be thinking.

But everyone, including Zuma, should perhaps be cautioned that the judge president's decision may in the end prove to have been a hollow victory.

Judge Ngoepe was at pains to tell the court that he had not opted to preside at the trial for any other reason but that of respect for its enormous importance. He compared its significance for South Africa to that of the Rivonia treason trial, in which Nelson Mandela was convicted of treason; the trial of the killers of Chris Hani; and Nelson Mandela's divorce action against Winnie Madikizela-Mandela.

He said the rape trial was a matter that involved the former deputy president of the country and indeed the deputy president of the ruling party. It was for this reason and no other, he said, that he and his two deputies, Judge Phineas Mojapelo and Judge Jerry Shongwe, had resolved that he should preside.

He added that the matter would clearly be an unpleasant one for everyone and that it had therefore been decided that the buck needed to stop at his desk.

Judge Ngoepe rejected the defence argument that, by issuing search warrants that were used by the Scorpions in searching the offices of Zuma's attorneys in August, he had made a prima facie judgment about Zuma or his credibility.

Nonetheless, Judge Ngoepe said, as Zuma might continue throughout the trial to be concerned, he had decided, given the importance of the matter, to take a "broader view of the matter" and remove himself from it.

However, he continued, his No 1 deputy, Judge Mojapelo, had indicated that, for "personal reasons", he did not want to preside and that the job would fall to Judge Shongwe.

But almost before the media, the public and members of both families - that of Zuma and of the complainant in the rape matter - had left the court, there were clear signs of unease among the defence team.

It rapidly became clear that the defence has what it considers to be very pressing and cogent reasons why its members do not believe Judge Shongwe also would not be suitable to preside at the trial.

These reasons are understood to relate to matters of a sensitive personal nature and to the fact that Judge Shongwe has also been involved in the past in court matters related to Zuma.

In September 2003, Judge Shongwe refused an urgent application brought by Zuma to see the famous "encrypted fax" that implicated him in corruption in the arms deal. The handwritten, encrypted fax was later central to the prosecution of Zuma's former financial adviser, Schabir Shaik, on charges of fraud and corruption.

Judge Shongwe struck the matter off the roll - due, he said, to its lack of urgency - and instructed Zuma to pay the costs of the National Director of Public Prosecutions, the National Prosecuting Authority and the Scorpions.

As The Star went to press, the defence team remained adamant that if they found Judge Shongwe on the bench this morning, they would press for his recusal too.

Who then will preside at the Zuma rape trial? At this point, no one knows, but it might be a judge without the clear sensitivity and understanding of the judge president. This is why Judge Ngoepe's recusal yesterday may end up being a hollow victory for Zuma.

With acknowledgements to Jeremy Gordin and The Star.