Publication: Business Day Issued: Date: 2008-09-13 Reporter: Karima Brown Reporter: Hajra Omarjee

Ruling Dents Mbeki's Repute

 

Publication 

Business Day
Date 2008-09-13
Reporter Karima Brown, Hajra Omarjee
Web Link www.bday.co.za

 
Judge's remarks about political meddling raise question of whether president will be recalled, write Karima Brown and Hajra Omarjee

African National Congress (ANC) president Jacob Zuma's path to the Union Buildings was cleared *1 by the Pietermaritzburg High Court on Friday when it threw out the state's corruption case against him.

Judge Chris Nicholson nailed President Thabo Mbeki, his cabinet and the National Prosecuting Authority (NPA) in an emphatic judgment that painted a picture of a political conspiracy with "Kafkaesque" overtones aimed at thwarting Zuma's presidential aspirations.

Given the explicit nature of the judge's comments on his political machinations, Mbeki's fate again hangs in the balance as the ANC's allies and the ANC Youth League bay for his blood.

He survived a bid earlier this year by the South African Communist Party to have him removed before his term ends next year .

The youth league is demanding Mbeki be removed from office immediately ­ and this is likely to be tabled next week at the party's national executive committee (NEC) meeting .

"The reason half the NEC members were at the court is because we wanted them to see for themselves and hear for themselves what the judge had to say, so when we discuss issues in the NEC it will be clear," says ANC secretary- general Gwede Mantashe.

ANC Youth League president Julius Malema is unequivocal: "The NEC has a responsibility to recall him; if not, we will."

The Congress of South African Trade Unions will convene a special central executive committee meeting in the next few days to discuss the political implications of the Zuma judgment.

This is the second time that a high court has struck Zuma's corruption case off the roll. Pietermaritzburg High Court Judge Herbert Msimang also chucked out the case in 2006, but the NPA recharged Zuma days after he was elected ANC president .

While the NPA can technically appeal the judgment, or charge Zuma yet again, it is highly unlikely that it will have the appetite for another legal bout with Zuma. *2

Nicholson said claims of a political conspiracy were perhaps not as farfetched as some believed. "I am ... not convinced that the applicant was incorrect in averring political meddling in his prosecution *3," he said.

The judge was highly critical of former justice minister Penuell Maduna's close involvement with former prosecutions boss Bulelani Ngcuka in the early stages of the investigation and asked whether Maduna was on a "frolic of his own" *4. He said the president and his cabinet should take responsibility for this political meddling *5.

Zuma has long complained he was the victim of a politically inspired plot *6 and that state institutions, including the NPA, were used against him. Nicholson said Mbeki's bid for a third term as ANC president was at the heart of the sequence of the NPA's decision to recharge Zuma. *7

Nicholson's judgment suggests that the independence of the NPA is critical to the development of a constitutional democracy. This sets the scene for its future interactions with the executive.

In his reaction to the judgment, Zuma was humble and magnanimous *8. Speaking almost entirely in Zulu, he said it was a "victory" for the "judiciary, democracy and the justice system. This is a serious reflection that those given authority should not abuse it. *9"

While Zuma and his supporters have often been lambasted for their attacks on the judiciary, Friday's judgment points to the interference coming from Mbeki and his administration instead.

"They called us baboons and thugs.... We have been vindicated. We want to see who are the real rapists of the judicial system," said Cosatu general secretary Zwelinzima Vavi.

Zuma's supporters also took a swipe at the media for its portrayal of the ANC president, saying it was as a result of a "racist media".

Last week the ANC and its alliance partners called the publishing of a cartoon ­ which depicted Zuma about to rape Lady Justice while his allies held her down ­ "abuse of press freedom".

Senior ANC leaders who stood by Zuma through his many legal battles said they were "excited and concerned" at the turn of events.

"On the one hand it proves what we have been saying all the time, but the reality is that our institutions have been abused. The challenge now is to rebuild them, but can the NPA really recover from this? *10" a senior ANC NEC member asked.

Mo Shaik, a close associate of Zuma and brother of Zuma's former financial adviser Schabir, says: "President Thabo Mbeki now needs to have the moral courage to pardon Schabir. The judge painted a picture of conspiracy and while I am happy for JZ, I am also very sad for Shabir. He must be pardoned. *11"

Schabir Shaik is serving a 15-year sentence for fraud and corruption relating to his loans to Zuma and has been suffering ill health since he was sentenced.

Whatever the decision of the ANC leadership on Mbeki's future, the party will have to be mindful of several challenges it faces should it decide to recall Mbeki.

The first is the election battle, which looms large as the party prepares to launch its campaign.

Since Mbeki sacked Zuma from his cabinet in 2005 after Shaik's conviction, the ANC has been rent down the middle as factions vied for control of the party. This has had a devastating effect on the cohesion of the ANC at all levels.

While most analysts predict its return to power after next year, there is concern voter turnout will be lower, pointing to questions about the ANC's credibility and legitimacy among South Africans *12. But the ANC believes that with Zuma at the helm, free of charges hanging over his head, its campaign will be hugely successful.

With acknowledgements to Karima Brown, Hajra Omarjee and Business Day.


*1       Typical Karima Brown bullshit.

All that happened was the temporary removal of an obstacle.


*2      Nonsense - this just a slight setback on what is really the most minor of technical points.


*3      That there was political meddling in his prosecution is beyond any doubt.

But the irony of this (which Judge Nicholson does not negate in his judgment), is that such interference was specific to protect Jacob Zuma from prosecution as deputy president of the country and the ANC.

Mbeki has said to some among us that he did not want to see Jacob Zuma convicted - surely because it would reflect on the ANC and government both of which Mbeki was president. This would reflect negatively on Mbeki's legacy as well as be a risk to Mbeki's tightly squeezed Arms Deal testicles which are firmly being gripped by Zuma, Moe Shaik and Chippy Shaik, inter alia.

But a tragic aspect of this greatest of ironies is that the very conduct of Ngcuka and Maduna on behalf of Mbeki and the ANC has provided truth to the interference, but that this has been turned 180 degrees by Zuma and his advisors (Moe Shaik chief among them) such that this interference was actually in respect of political rivalry and to prevent Zuma from becoming president.

This is patent nonsense.


*4      Maduna was certainly not on a frolic of his own. Maduna was certainly on a frolic of Mbeki, the ANC and their benefactor Thomson-CSF.


*5      The president and his cabinet should surely take responsibility for this political meddling.

The President, his Minister of Justice, his National Director of Public Prosecutions and his Director of Special Operations should be charged with obstructing the course of justice.


*6      Zuma has long complained that he was the victim of a politically inspired plot, but has never been able to show the slightest bit of proof in this regard and has indeed on multiple occasions such line of legal defence or legal argument - because it would be laughed of of court.


*7      This is a giant leap of logic and actually a serious flaw in the judgment.

The problem is that this is the say-so of the Applicant in this case, but the Respondent has been too coy to actually explain Mbeki's real motivation in interfering in the Zuma corruption matter.

In any case the Respondent, the NPA has twice lost applications in the High Court and twice had the criminal charges against Zuma declared invalid. It has also had it integrity shredded in a mainly well-reasoned judgment by a good High Court judge. On this point this will stand forever unless the NPA takes the judgment on appeal.

So now is the time for the NPA to make amends for its ghastly conduct and ineptitude - for this is what it is nothing less, maybe more.

This is not to say in the slightest that such conduct and performance is at the level of the prosecutors or the investigators - indeed the opposite is the case.

The conduct and performance of the prosecutors and investigators has been superior in almost every respect. They have won absolutely conclusively a massive criminal conviction against Schabir Shaik in what was up until now one of the most difficult cases in out legal history. They have received awards and accolades from their peers and other legal bodies.

But the prosecutors and investigators have been stymied by their superiors at almost every turn by the conduct of the latter.

Herein lies the absolute shame of the NPA and the DSO.

And at the same time politically the NPA and DSO have been outwitted by the simplistic patent nonsense of the likes of Moe Shaik.

South Africa's 46 million citizens deserve better than to have a president who has escaped justice by not having a raft of ultra-serious criininal charges against him test in a court of law.

So now is the time for the NPA to make amends.

It must take a dozen or more deep figurative breaths and then :
This is not teaching one's grandmother to such eggs.

This is teaching one's only national prosecuting authority how to do its job properly.

That this is necessary is not only true, but it is sad.

Doing the above properly is entire achievable; indeed it is the NDPP's and NPA's obligation to do so.

If the National Prosecuting Authority refuses or cannot do its job properly it must issue a nolle prosequi certificate and let a private prosecutor take over.

These are harsh words, but seldom are they more deserved.


*8      Well let's hope he and his supporters will be as humble and magnanimous when the final judgment is handed down.


*9      And let's hope that should ever assume the presidency, these words will be always remembered and fulfilled.


*10     Yes if it just does its job properly starting with a review of the Jacob Zuma bribery and corruption case.


*11     A typical Moe Shaik piece of nonsense.

One judgment on a tiny technical point over-rides three rulings from three courts from 17 judges regarding Schabir.

Dr Goebbels would dance a jig.


*12     If Zuma ascends to power with the charges against him being properly tested in a court of law, the ANC's credibility and legitimacy among South Africans and indeed the world will be zero.

It is the obligation of the NPA that the charges against Zuma are properly tested in a court of law during the next eighteen months at most.

Nothing less is acceptable.


Finally :