Letters Correspondent

Bulelani Ngcuka says the Zuma judgment suggests he was part of a political agenda that had as its objective the favouring of the president. Here he gives his 'unequivocal assurance that this is not so'

I have been approached by a number of persons and publications for comment on the recent judgment of the Natal Provincial Division of the High Court in the matter of Zuma v the National Director of Public Prosecutions.

As I am no longer national director of public prosecutions, these are matters best left in the hands of the current incumbent. I note that he intends to apply for leave to appeal. That process must be allowed to take its course. *1

It is, however, necessary to respond to certain aspects of the judgment where I am unfairly criticised. I do so with respect to the court.

In considering the judgment, it must be borne in mind that I was not a party to the court application. I had no opportunity beyond the affidavit which I filed to respond to or deal with criticism of my conduct.

The judgment suggests that I was part of a political agenda that had as its objective the favouring of the president, and that I allowed my prosecutorial independence to be compromised. I give the unequivocal assurance that this is not so.

My decision not to charge Jacob Zuma together with Schabir Shaik *2, including the careful and thorough steps taken before making the decision *3, is fully explained in the affidavits filed in the case *4. I stand by the decision.*5

There was nothing sinister or unfair about it. Already in the context of Mr Shaik's case, the Constitutional Court has held that the decision was not unfair. The High Court was bound by this decision of the Constitutional Court, but seems, with respect, to have overlooked this.

In suggesting that I was party to a political agenda, the court refers to a statement which I made at a press conference about the decision not to prosecute Mr Zuma.

From my statement and from an obvious typographical error in it, the court infers that the then minister of justice influenced my decision. This is simply not so. As the affidavits in the case show, the decision not to prosecute Mr Zuma was taken by me pursuant to a careful, internal process in which the minister of justice played no part.

My expression of gratitude to the minister at the press conference had nothing to do with the decision not to prosecute.

As the statement itself shows, it related to his support for the National Prosecuting Authority as an institution in the face of sustained attacks on it in the public media *6 at the time. The minister of justice is constitutionally obliged to provide such support.

The court also suggests that, as part of the alleged political agenda, an agreement was reached with legal representatives of Thint Holdings in the presence and with the involvement of the minister, regarding Thint's co-operation in the prosecution.

Again, this is not so. The court's finding in this regard is based on a misreading of an affidavit of a Mr Du Plooy, which is quoted in the judgment.

As that affidavit shows, Thint's representatives were referred to the offices of the National Prosecuting Authority for purposes of discussing any such arrangement. The discussions at the National Prosecuting Authority did not involve the minister.

All of the court's criticism of my conduct is based on the process of inferential reasoning. The law in this regard was stated by an English judge, often quoted in the decisions of our courts, as follows:

"There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish ... if there are no positive proved facts from which the inference can be made, the method of inference fails and what is left is mere speculation or conjecture."

This is an important principle because the parts of the judgment which are critical of me were made in the context of an application to strike out evidence.

Unfair conjecture and speculation is material that should be struck out by a court. In my respectful view, it is into this category which the inferences drawn against me fall.

This will no doubt be a matter considered on appeal.

There are other aspects of the judgment which are controversial. It is not for me to comment on them.

I expect that these matters and other unfair criticism directed at me in the judgment will be addressed on appeal.

Ngcuka is a businessman and former national director of public prosecutions

With acknowledgements to Bulelani Ngcuka and Sunday Times.