Publication: Cape Argus Issued: Date: 2009-01-14 Reporter: Pierre de Vos Reporter: Paul Hoffman

Zuma and the Courts

 

Publication 

Cape Argus
Date

2009-01-14
Reporter Pierre de Vos, Paul Hoffman

Web Link

www.capeargus.co.za


Jacob Zuma might still have to sing and dance outside court for several years to come, writes UWC constitutional law professor Pierre de Vos

The stunning and complete rejection by the Supreme Court of Appeal (SCA) of the controversial High Court judgment handed down last year by Judge Chris Nicholson in favour of Jacob Zuma represents a mere temporary setback for Zuma in his quest to ensure a 10-year stint for himself in the Union Buildings rather than in Pollsmoor prison.

It is not the end yet for Zuma. Neither is it the beginning of the end. Perhaps, as the saying goes, it is the end of the beginning. This is because the most recent judgment originally dealt with a very narrow technical point, namely whether the constitution – read with the relevant section of the National Prosecuting Authority (NPA) Act – required the National Director of Public Prosecutions (NDPP) to afford Mr Zuma a hearing before charging him with corruption.

Acting Deputy Judge President of the SCA Louis Harms – writing for a panel of five judges – confirmed on Monday what most constitutional scholars had long suspected, namely that the NDPP had no legal obligation to afford Zuma a hearing.

If Zuma’s legal fees were not paid by us taxpayers, his lawyers probably would never even have brought this particular application, which was probably launched only to prevent Zuma from standing trial before he becomes president of the country later this year.

Zuma and his lawyers may decide to waste more of our money by appealing the case to the Constitutional Court, where the prospect of success is rather slim. Or they can bring a more substantial application for a permanent stay of prosecution to ensure that Zuma never gets his day in court.

However, the SCA judgment seems to have dealt a blow to the prospect of such an application succeeding. Zuma’s lawyers will have to argue that it would be impossible for him to get a fair trial because he has been prosecuted only for political reasons or because the case has dragged on so long and the reporting in the media has so tainted the minds of every judge in South Africa that it would be impossible for any judge to hear such a case with an open mind.

This is an extremely high legal hurdle to overcome and few judges would grant such an application in the light of the SCA judgment which found that no credible evidence was placed before the court about a political conspiracy against Zuma.

But Zuma does have another ace up his sleeve. If Parliament confirms the firing of the NDPP, Vusi Pikoli, and if President Motlanthe then appoints a “disciplined member of the ANC” as head of the NPA, the “political solution” to his legal troubles might yet be found *1. A long legal road therefore still lies ahead for Zuma, who might still have to sing and dance outside courtrooms for several years to come. At least he will be comforted by the fact that he will be the president of the country during all of this.

The same could not be said for Thabo Mbeki, who was fired as president shortly after Judge Nicholson found that Mbeki and his Cabinet had probably interfered in the prosecution of Zuma. The SCA’s most scathing criticism of the Nicholson judgment is reserved for these findings of the High Court – but for Mbeki the judgment comes too late to be reinstated as president.

The SCA found that Judge Nicholson erred by making a finding about the possible existence of a political conspiracy against Zuma.

Nicholson had made these findings because the NPA had asked the court to strike out these allegations made in the submissions of Zuma’s lawyers to the High Court as they argued these allegations were “scandalous, vexatious or irrelevant”.

This aspect of the SCA judgment is extraordinary because of the acerbic way in which Nicholson is taken to task for making these highly charged political findings.

“Judges,” lectured Judge Harms, “are not entitled to inject their personal views into judgments or express their political preferences. The independence of the judiciary depends on the judiciary’s respect for the limits of its powers…”

This meant that in the course of the discussion about a political conspiracy, Nicholson “changed the rules of the game, took his eyes off the ball and red-carded not only players but also spectators”.

Nicholson then completely overstepped his authority as a judge, failing “to confine the judgment to the issues before the court; by deciding matters that were not germane or relevant; by creating new factual issues; by making gratuitous findings against persons who were not called upon to defend themselves; by failing to distinguish between allegation, fact and suspicion; and by transgressing the proper boundaries between judicial, executive and legislative functions.”

Judges of higher courts often reverse decisions by judges of lower courts, but they seldom launch such a scathing attack on a judge of the lower court when doing so. The fact that the SCA thought it necessary to do so in this case suggests that it was very upset by the “political” nature of the original judgment and might have felt – rightly or wrongly – that the Nicholson judgment had tarnished the credibility of the judiciary, and had thus potentially undermined respect for the independence of the judiciary.

It is important to note that the SCA judgment does not make a finding about the absence of a political conspiracy against Zuma. The SCA faults Nicholson for wading into this highly charged political thicket and points out that the “findings” made by Nicholson about a political conspiracy was mostly based on media speculation. But it explicitly declined to make any finding of its own on whether there was indeed a political conspiracy to charge Zuma or not because, as it points out, there was not sufficient evidence before the court to make a finding on this point – which would have been legally irrelevant in any case.

Although it is still unclear whether Mbeki and his Cabinet meddled in the decision to prosecute Jacob Zuma *2, it is clear that there was not sufficient evidence before the court to make a finding on this. If allies and supporters of Zuma, who often correctly point out that he must be presumed innocent until proven guilty, are consistent, they should therefore refrain from making wild allegations against Mbeki about the existence of a political conspiracy against Zuma. The fact is that we do not know whether such a conspiracy exists – just as we do not know whether Zuma is guilty of corruption or not.

The SCA judgment reminds us of these important facts and should therefore be compulsory reading for the political hot heads on either side of the Mbeki-Zuma divide.

Pity politicians are not well known for reading the long and carefully argued judgments of our most important courts.

 



* By Paul Hoffman

In 88 paragraphs of tightly reasoned and carefully worded *3 legal prose, the Supreme Court of Appeal has excoriated the judgment won by Jacob Zuma in the Pietermaritzburg High Court in his long-running battle with the National Prosecuting Authority (NPA).

From a constitutional perspective, the issues involved the interpretation of review powers the Constitution gives to the National Director of Public Prosecutions (NDPP), the independence of the NPA and the nature of the judicial function.

In the judgment the five judges are at pains to stress the technical nature of the dispute and to distance themselves from the political frolics they discern in the judgment appealed against by the NPA. There is criticism of the methodology of the lower court and close concentration on the actual issues which emerge from a careful conspectus of the papers actually placed before the courts.

Zuma applied to have the decision of the Acting National Director of Public Prosecutions to press 18 serious charges against him set aside on the basis that he was not invited to make representations on the topic in circumstances in which, so Zuma contended, he was legally entitled to such an invitation. This note concentrates only on the constitutional aspects of the appeal.

That a section of the judgment is devoted to the topic of “the Judicial Function” is an indication of just how far the appellate judges considered that their junior colleague had strayed from the role of a judge in making “gratuitous” findings “for reasons that are impossible to fathom”.

The need for judges to stick to judging the issues with which they are presented in any given case is stressed and the need to avoid taking on the role of the executive or legislature as a concomitant of the separation of powers also enjoys prominence.

Judges are constrained by the law in exercising their judicial functions.

The Supreme Court of Appeal is careful to remain aloof from the political arena. It avoids making its view known on the advisability of a commission of inquiry into the arms deals, not because it does not have a view, but because the issue is not one for determination in the case.

The proper role of judges in civil proceedings is to determine the issues in the case before them, without pontification or being judgmental, especially in respect of those who have not been called upon to defend themselves.

Next there is the question of the independence of the NPA; its ability to act without fear, favour or prejudice in the exercise of its functions. These include the institution of criminal proceedings such as those contemplated against Zuma and to carry out necessary functions incidental to the institution of such proceedings.

Can independence be inferred from the constitutional injunction that “national legislation must ensure that the prosecuting authority exercises its functions without fear, favour or prejudice”, or is the concurrence of the Minister of Justice in prosecution policy a hindrance to the exercise of this inferred independence?

The Appeal Court regards it as a given that the NPA must not be led by political considerations and that ministerial final responsibility does not imply a right to interfere with any decision to prosecute. But there is a rather ill-defined relationship between the Minister of Justice and the NDPP which does need contextualisation.

The latter sets prosecution policy with the concurrence of the former, but the former has “final responsibility” over the prosecuting authority. The independent functioning of the NPA is also regarded as a given and the court accepts that political interference in the decision-making process is not to be countenanced.

No such interference is found on a jurisprudentially acceptable reading of the papers filed of record. A prosecution’s motivation is legally irrelevant – one for the best of motives can be illegal, and another for the worst of motives legal.

The specific review powers of the NDPP, as spelt out in section 179 (5) (d) of the Constitution, receive close analysis in the judgment. These are at the heart of the case for Zuma. The issue here is whether or not he is entitled to expect an invitation to make representations in circumstances in which one NDPP announces that it is not his intention to prosecute Zuma with Schabir Shaik, after which two of his successors make contrary decisions without affording Zuma any hearing of any nature.

The court points out that Zuma has at no relevant stage sought to make representations. Immediately after judgment was handed down this changed, but on the papers Zuma relies, in essence, upon the technical failure of the prosecuting authorities to invite him to make representations.

The court comes to the conclusion that the term “review” in the context in which it is used in the section cannot be given the ordinary dictionary meaning relied upon by Zuma’s counsel in argument and concludes that the invitation Zuma did not receive was not one to which he was legally entitled in the first place.

The upshot of the appeal is that the decision of the lower court has been set aside, the prosecution can proceed unless a further application, one aimed at a permanent stay of the prosecution based on the “justice delayed is justice denied” *4 principle and possibly on political interference *5 (again), succeeds or a further appeal to the Constitutional Court is successfully launched by Zuma.

The big decision still pending is: will the ANC keep faith in its presidential candidate, or will it recognise that any president of a modern and complex society such as ours cannot properly fulfil his constitutional duties towards the country from the dock of a criminal court situated in a city a long way from any seat of central government.

- Paul Hoffman SC is a Senior Advocate of the High Court and is former director of the Centre for Constitutional Rights.
 
Related Articles
With acknowledgements to Pierre de Vos, Paul Hoffman and Cape Argus.
 

*1       This would simply be unlawful.

An NDPP has to properly discharge a discretion, not do as political masters tell him.


*2      Although it is still unclear whether Mbeki and his Cabinet meddled in the decision to prosecute Jacob Zuma, it is clear that Mbeki and his Cabinet meddled in the decision to not prosecute Jacob Zuma.


*3      A beautiful example of such tight reasoning and careful wording is the following :
 
"[76] I now turn to consider the argument based on legitimate expectation, which is an alternative cause of action. I found it difficult to come to grips with Mr Kemp’s argument on both the expectation and its legitimacy.
 
[77] The argument underwent a metamorphosis and ultimately it was that Mr Zuma ought to have been given an opportunity (more accurately, to have been invited) to make representations, not about the reversal of the Ngcuka decision but about the ‘effective decision not to afford [him the opportunity] to make representations which could or would relate also to issues which have nothing to do with the merits of the criminal trial’. This sleight of hand was apparently due to a tacit recognition that decisions to prosecute are not covered by ‘specialised legislative regulation of administrative action’, and that they are not reviewable on the ground of legitimate expectation by virtue of PAJA. The problem with this argument is that there is nothing on the papers to suggest that the NDPP decided not to afford Mr Zuma the opportunity to make representations. To dissect any administrative decision into discrete sub-decisions as counsel would have it is contrived since, as Mr Trengove said, any procedural unfairness would then imply a prior decision, whether express or tacit, not to follow the correct procedure.
 
[78] It is to be noted that Mr Kemp scuppered the case as presented to and found by Nicholson J. He no longer sought to rely on the Ngcuka announcement or on the Hulley/Mpshe correspondence as having created any expectation because, as he said, he could not point to any representation in them. "
 

Sleight of hand, scuppered the case, indeed.


*4      I don't think that this is correct. The Accused's stated position that he cannot get a fair trial.

In any case an appeal for permanent stay based on justice delayed would fail because it is largely the conduct of the Accused (using taxpayers' monies) to delay justice - because that's what suits him.


*5      This is an interesting one - political interference.

The SCA has ruled that there was no evidence of political interference placed before the High Court.

So for this to fly, Kemp J. Kemp would have to produce bona fide and compelling evidence of political interference in the application.

He would be able to find plenty of evidence that there was political interference in 2003 not to charge his client (I can assist him in this regard), but is that what he wants?

He would be more hard pressed to find evidence of political evidence in the 2005 era to charge and in the 2007 era to re-charge his client.

But I wish him and his client well in this endeavour, for it will be in the public interest to know whether it happened or not.

If he finds such evidence it will again prove that Thabo Mbeki is a liar of a national standard.

But maybe Advocate Hoffman actually means political conspiracy - there is a subtle but important difference between political interference and political conspiracy. At the very least the former involves the national executive on a direct basis while the latter might mean political machinations without the direct or known involvement of the national executive.

But despite many mouthings that there is "in fact" a political conspiracy against him by the Accused, his supports and his legal representations, Kemp. J. Kemp has always baulked at actually presenting this before the court, albeit having had many opportunities of doing so.

So this one is likely to take off like a Darwin Award.


*6      I do not think that an appeal to the Constitutional Court can prevent The State's case from proceeding.

It might theoretically prevent the The State from winning its case.

The State is looking for setdown of the trial and the only factors that will prevent the trial from commencing sooner rather than later are the availability of court dates, the availability of a qualifying presiding officer *7 and a request by the Accused for further time to prepare his defence.

The State is ready to proceed with its case in terms of fullscale trial as early as next week, but practically mid-April is more convenient. The Accused will likely request a postponement for up to a year, but a postponement until the start of the third court term in July more reasonable. A long postponement would in any case be detrimental to a parallel application for a permanent stay where delay was mentioned at all.


*7      At this stage the designated presiding officer is one Nicholson J and one can only hope that in the interests of justice that he brushes up substantially on the Judicial Function or recuses himself without further ado nor delay *8.


*8      Unless he has a plan so cunning that even Capt Edmund Blackadder could not ignore.