Judges slam Nicholson verdict

ANC President Jacob Zuma's will face graft charges after a court ruling today overturned Judge Chris Nicholson's ruling that the prosecution's case was invalid.

Upholding an appeal by the National Director of Public Prosecutions, five Supreme Court of Appeal judges this morning unanimously overturned Judge Nicholson's ruling that had halted the prosecution of the party's president.

Judge Nicholson had ruled that the prosecution was invalid because the National Prosecuting Authority had failed to invite him to make representations about the criminal allegations against him before charging him.

Judge Nicholson's judgment was the basis on which Mbeki was fired as President.

The National Prosecuting Authority immediately confirmed that the charges against Zuma would proceed.

"We are indeed very pleased," Tlali Tlali, spokesman for the NPA, told reporters. "The legal effect of this decision is that Mr. Zuma remains charged."

Speaking for himself and his colleagues, Appeal Court Deputy Judge President Louis Harms hit Zuma with a punishing costs order for his "cut and paste" conspiracy allegations against the State.

Judge Harms chastised Judge Nicholson for his "political meddling" inferences against Mbeki and the State, describing them as "gratuitous findings … made about persons not called to defend themselves".

Judge Harms said many of these findings were based on Judge Nicholson's "own political conspiracy" beliefs - and were not supported by evidence or even by accusations made by Zuma himself.

"The findings involving Dr Penuell Maduna, Mr Mbeki and all the other members of cabinet ... were not based on any evidence or allegations. They were instead part of the judge's own conspiracy theory and not one advanced by Mr Zuma," said Judge Harms.

"He (Judge Nicholson) overstepped the mark … He changed the rules of the game, he took his eyes off the ball," Judge Harms said, adding that Judge Nicholson's failure to confine his judgment to the legal dispute before him set a "dangerous precedent".

"Political meddling was not an issue that had to be determined. Nevertheless a substantial part of his judgment dealt with this question," Judge Harms said.

He said Judge Nicholson's finding that he could not exclude the possibility of political meddling in the decision to re-charge Zuma was "incomprehensible", that he erred in his judgment and that his findings were "unwarranted".

Judge Harms started delivering his judgment at 10am today in the appeal lodged by the National Director of Public Prosecutions against the Nicholson ruling on September 12 last year.

The Bloemfontein court ruled on mainly two aspects in the appeal.

The first is whether Zuma was entitled to make representations before the NDPP decided to re-charge him with corruption and fraud in December 2007, ten days after Zuma beat Mbeki in the ANC leadership race.

The second is whether Nicholson was correct in implying in his September 2008 judgment there was political meddling by Mbeki in the decision to charge Zuma.

Judge Harms said Judge Nicholson's stated support for a Commission of Inquiry into the arms deal and criticism of Mbeki's decisions to fire Zuma and stand for ANC president in 2007 clearly demonstrated how he had gone beyond what he was required to decide.

The judge stressed throughout the appeal ruling that Judge Nicholson was never required to rule on the political conspiracy suspicions raised by Zuma because they were "not relevant" to the so-called "representations dispute" between Zuma and the NPA.

"You are either entitled to a hearing or you are not," Judge Harms said.

Judge Harms dismissed Judge Nicholson's "gratuitous" findings that Mbeki and his former justice ministers had meddled in the State's decisions to charge Zuma, pointing out that there was no evidence to support these conclusions.

But, while finding that Mbeki and his ministers "had ample reason to be upset" about the findings made against them, Judge Harms said the former president did not have enough of an interest in the State's appeal to justify his own direct attempt to intervene in it.

The judge pulled apart each of the legal arguments used by Zuma's lawyers to justify their claim that the NPA was constitutionally obliged to invite Zuma's representations on the criminal allegations against him.

Addressing arguments by Zuma's advocate Kemp J Kemp SC that Zuma had a "legitimate expectation" that he would be asked for his representations by the NPA, Judge Harms said he found this reasoning "difficult to grasp".

Zuma and his legal team were absent from this morning's ruling.

Four months ago, Judge Nicholson changed South Africa's political landscape by quashing Zuma's prosecution and finding that there was merit to his suspicions of a "political conspiracy" against him by Mbeki and the state.

The corruption case against Zuma first came to light in 2003, when former chief prosecutor Bulelani Ngcuka announced there was a prima facie case against Zuma, but that he would not be charged alongside his financial adviser, Schabir Shaik.

Shaik was convicted on fraud and corruption charges in 2005, among others related to an alleged bribe he negotiated between Zuma and a French arms company.

Days later, Mbeki fired Zuma as deputy president of the country.

Shortly after that, Ngcuka's successor, Vusi Pikoli, charged Zuma with corruption.

But in September 2006, Judge Herbert Msimang struck his case off the roll, refusing the State's request for a postponement.

In December 2007, Zuma successfully challenged Mbeki's leadership at the ANC conference in Polokwane. That month, acting NDPP Mokotedi Mpshe decided to charge Zuma again.

The charges hung over his head until September 2008 when Nicholson ruled in his favour, finding that the NDPP should have first offered him the opportunity to make a representation before deciding to re-charge him.