Publication: Business Day Issued: Date: 2008-11-02 Reporter: Franny Rabkin

Court Blocks Mbeki’s Nicholson Appeal

 

Publication 

Business Day
Date 2008-11-02

Reporter

Franny Rabkin

Web Link

www.businessday.co.za



The Constitutional Court has dismissed an application by former president Thabo Mbeki to challenge aspects of Judge Chris Nicholson’s judgment which set aside the decision to prosecute African National Congress (ANC) president Jacob Zuma.

In dismissing his applications for leave to appeal and for direct access to the court, the Constitutional Court ruled that it was “not in the interests of justice to hear (Mbeki’s) applications at this stage”.

The court said it had reached this conclusion as the National Prosecuting Authority (NPA) was appealing the whole of Nicholson’s judgment in the Supreme Court of Appeal (SCA).

The NPA’s appeal will be heard on November 28.

Mbeki’s Constitutional Court applications specifically targeted those aspects of Nicholson’s judgment that implied that he and former justice ministers Brigitte Mabandla and Penuell Maduna, had meddled politically in the NPA’s work.

In his application, Mbeki said Nicholson’s judgment was related directly to the decision by the ANC to recall him from office as president.

He said Nicholson’s findings suggested that he “acted improperly or without integrity, all of which are injurious to my good name, reputation and my right to human dignity”.

Mbeki said it was “improper for the court to make such far-reaching findings concerning me and former members of the national executive without first giving us a hearing”.

Both Zuma and the NPA opposed Mbeki’s application to the Constitutional Court. The “limited” basis of the NPA’s opposition was that it was also appealing against the judgment, including those aspects Mbeki had taken issue with.

Legal experts said they believed that, based on the reasons given by the court for the dismissal, Mbeki would not be prevented from taking the case back to the court once the appeal had been heard and decided by the appeal court.

Mbeki would also be able to apply to the appeal court to join its proceedings *1 because he had a direct and substantial interest in the outcome of the case.

With acknowledgements to Franny Rabkin and Business Day.


*1       Which he could have done in the High Court case.

But was so arrogant in thinking that there could not be a negative outcome for him.

Actually, I'm talking nonsense.

The reason why Mbeki declined the opportunity of joining in the High Court case was because then he would have had to submit under oath affidavits of facts (ostensibly the truth, the whole truth and nothing but the truth), as well as possibly risk giving oral evidence and cross-examination.

Considering the reality of his interventions with Bulelani Ngcuka and Penuell Maduna and Judge Willem Heath at the very least, Mbeki's strategy, although unpalatable, was to risk a negative outcome by Judge Nicholson and then try to overturn it in higher courts (on the same evidence as the High court), but without a full ventilation of the facts (which always happens in the lower court).

Now Mbeki's name has been sullied and can surely never be fully laundered whatever efforts and expense are made in the Supreme Court and Constitutional Court.

But it is a lot better than the damage that would have resulted from complete disclosure and true extent of the meddling to protect himself from the fallout of the Arms Deal as well as collateral nonsense such as the arrest of the National Commissioner of Police His Excellency and one of Thabo's best friends Jackie Selebi.

This is all Gumbi logic.

Tell me it ain't so.