Publication: Business Day Issued: Date: 2006-11-20 Reporter: Aubrey Matshiqi Reporter:

Squires Brings Another ‘Thinking Class’ Trait to Fore : Defensiveness

 

Publication 

Business Day
Date 2006-11-20

Reporter

 Aubrey Matshiqi

Web Link

www.businessday.co.za

 

If Judge Hilary Squires has been able to hear the heartfelt apologies of the media, political commentators, legal analysts and the Supreme Court of Appeal (SCA) ­ despite the sound, fury and obfuscation of the past week ­ his hearing is a great deal better than mine.

That we all, as he says, “mindlessly parroted” the view that he had found that there was a “generally corrupt relationship” between Schabir Shaik and Jacob Zuma has exposed the canon of irrational thought that has been driving the succession debate since June last year.

It has also unmasked the underlying prejudices of the so-called “thinking classes” in their engagement with the Zuma affair over the past 17 months.

The legal and political sophistry of the “thinking classes” notwithstanding, we must take responsibility for letting down the public and for crying “witch” like the girls of Salem in Arthur Miller’s play The Crucible in a way that has surely prejudiced Zuma.

People have asked me why they have not heard me commenting about this comedy of legal errors and I have been telling the lie that I have been deep in thought and could not afford to be interrupted by media interviews. The truth, however, is that I was overcome by a deep sense of shame.

I sat through the entire Squires judgment for three days as a resident analyst for the public broadcaster and all these months believed that I had indeed heard him utter that legally colourful phrase.

I then read his judgment a few days later but still did not pick up the error and, most importantly, I chided a group of journalists late last year for not reading the judgment.

I am deeply ashamed and I am beginning to wonder whether my “blacklisting” by the public broadcaster was not poetic justice.

But I am even more ashamed of the defensiveness that has characterised debates on this matter.

Some have argued that the saga is a “storm in a tea cup”. It is easy to argue this flippantly when you are not the one who was buffeted by the storms of a widely held but erroneous view that you were part of a “generally corrupt relationship”.

I have even heard lawyers arguing that the Zuma legal team should have pointed out the mistake. I despair because they should know that such a course of action would not be in their client’s interest, since pointing the error out in the middle of an application to dismiss charges against him would serve his interests much more potently.

Should one even bother to highlight the incompetence of the SCA?

They argue in their characteristically erudite manner that their “grave error” (my misattribution) was germane not to the main criminal case but to the asset forfeiture civil matter, but they conveniently omit to tell us where they got the “generally corrupt” phrase from.

Did they read their own judgment? Despite all this, I think it is wrong to call on them to resign, but resign they should ­ I hope they will note the difference.

I have no doubt that underlying prejudices about Zuma are responsible for this mess.

When judges display a susceptibility to the same underlying prejudices, I need to be convinced that their state of mind was in a judicial mode.

I must be convinced that Zuma will have a fair trial because there is evidence from the past three years, starting with the “prima facie” gaffe and the National Prosecuting Authority feigning readiness to prosecute Zuma which suggests that a fair trial may not be possible.

Elsewhere cases have been dismissed not on their merits but on the basis of how the judicial environment was poisoned by debates in the public domain at the expense of the rights of accused persons.

Those who think that Zuma will have a fair trial must rebut the existing evidence to the contrary.

I hope in their rebuttal they will not make the leap of logic according to which doubts about a fair trial for Zuma amount to a belief in his innocence.

I still maintain that he may or may not be guilty of corruption. For me, there is still no basis for the mysterious mutation of a nonexistent finding that there was a “generally corrupt relationship” to the finding by a Sunday newspaper that Zuma is “officially corrupt”. *1

Ultimately, there is only one way of settling this issue and that is through a court of law (not the SCA).

If charges of corruption are reinstated against Zuma, he must go straight to the Constitutional Court to hear from them whether they think he can have a fair trial.

While we wait, Your Lordship, Judge Hilary Squires, I am very sorry.

Matshiqi is senior associate political analyst *1 at the Centre for Policy Studies

With acknowledgements to Aubrey Matshiqi and Business Day.


*1       This author sounds more like a senior political commissar at the Centre for Jacob Zuma Support and/or a cardinal in the Centre for Irrational Thought.