Publication: Business Day Issued: Date: 2009-01-13 Reporter:

Double-Edged Sword of the Zuma Ruling

 

Publication 

Business Day
Date 2009-01-13

Web Link

www.businessday.co.za



The Supreme Court of Appeal’s judgment in favour of the National Prosecuting Authority in the Jacob Zuma case comes as a relief in terms of maintaining the credibility of the judiciary, but is something of a nightmare politically.

High court Judge Chris Nicholson’s earlier dismissal of the fraud, corruption and other charges faced by Zuma was problematic on many levels from a strictly legalistic point of view, even if it struck a chord with many South Africans, so it is encouraging that the appeal court judges were unanimous in their finding.

Potential obstacles to the prosecuting authority’s ability to bring accused people before the courts in future have been avoided ­ the stated primary purpose of the appeal; and Nicholson’s tendency to opine on extraneous issues has been nipped in the bud before it set a precedent.

The charges against Zuma are too serious for him to be able to avoid them through a technicality; the court process must be allowed to run its course lest the message be sent that some in SA are more equal than others. At the same time, it is abundantly clear that (even if they are proven true) Zuma’s alleged indiscretions were relatively minor in the greater scheme of things ­ and just as it would be wrong for him to be denied the opportunity to prove his innocence, so it is unacceptable that so much to do with the odorous multibillion-rand arms deal, the ultimate source of his troubles, remains under wraps.

None of this means that Zuma cannot be elected president in a few months’ time ­ on the contrary, the ruling African National Congress (ANC) has made it clear that he remains their candidate regardless ­ but it does mean he will either have to appeal to the Constitutional Court or try to reach a settlement with the prosecuting authority if he wants to avoid standing trial eventually.

The former must be a bit of a long shot, given that five appeal court judges were unanimous in their decision yesterday. And the trouble with the latter approach is that Zuma’s lawyers are unlikely to accept any plea bargain agreement that might prevent him from becoming president, while in the wake of its appeal court triumph the prosecuting authority has little incentive to be overly generous. That raises the spectre of a sitting president being hauled before the courts to face fraud and corruption charges, which has both domestic and international implications that are too ghastly to contemplate.

The ANC has up to now largely resisted the temptation to meddle with the constitution, although it could have passed a law allowing a sitting president to postpone having to face criminal charges.

It now seems unlikely that the party will maintain the necessary two-thirds parliamentary majority in the coming election, so the point may be moot, but it will still be tempting for the executive to lean on the prosecuting authorities to toe the line, or for the party to “deploy” a cadre to the position of national director of public prosecutions to ensure that any negotiated settlement favours Zuma.

That would be in direct contradiction of one of several parts of Nicholson’s judgment that remain praiseworthy despite the harsh words Deputy Judge President Louis Harms used to describe the rest of it. Nicholson may have “taken his eye off the ball” when he suggested, without evidence to back it up, that former president Thabo Mbeki had interfered in the Zuma case.

But his main point was that the prosecuting authority should be independent of political interference *1, and it is regrettable that the appeal court did not do more to back him up on that score.

Another Nicholson suggestion, again going beyond the scope of the matters he was supposed to be considering, was that the only way the endless rounds of legal battles arising from the arms deal would be resolved was for there to be a comprehensive judicial inquiry to establish, once and for all, whether allegations of massive corruption are correct, and if so who the main beneficiaries were.

If Zuma was a bit player in the arms deal drama ­ as seems to be the case even if he is guilty of all the charges he now faces ­ South Africans have a right to know who the main actors were.

And since the goal of the plea bargain process is ostensibly to obtain information from the small fry *3 that could lead to a big fish *4 being caught, perhaps that should be the starting point *5 of any discussions that the prosecuting authority may have with Zuma’s lawyers in future.

The appeal court decision is clearly a setback for both Zuma and the ANC, especially in the context of the breakaway by the Congress of the People (COPE), which was at least in part motivated by the ruling party’s treatment of Mbeki.

The former president has not been vindicated *6 ­ the court merely pointed out that there was not enough evidence to accuse him of political interference ­ but his ousting from office is looking more suspect than ever, which could play into COPE’s hands come election time.

With acknowledgements to Business Day.



*1       Zuma’s alleged indiscretions were indeed relatively minor, except one - he got caught.

That's major - now he must face his accusers in caught.

That's the law.

That's the rule of law.

Let it not be otherwise.

For that is anarchy.


*2      Political interference there certainly was in the Ngcuka decision not to prosecute Zuma and Thomson-CSF.

Everyone was involved at that time: Ivor Powell, Leonard McCarthy, Penuell Maduna, Cyril Ramaphosa, Sipho Ngwema, Ismail Ayob, Kgalema Motlanthe, Mac Maharaj, Yunis Shaik, almost certainly Mo Shaik behind the scenes.

Don't tell me there was no political interference.

For that is merde de la merde.

See below. This article was published just one week before the infamous new conference on 23 August 2003.


*3*4*5  But that's what I've been telling the NPA for 6 years.


*6      The former president has certainly not been vindicated.

Let's see if he comes out of the woodwork now.


 

Ramaphosa Steps into Arms Row

Sunday Times
Mzilikazi wa Afrika, Ranjeni Munusamy, Andre Jurgens, Jessica Bezuidenhout
2003-08-17
 www.sundaytimes.co.za
http://www.armsdeal-vpo.co.za/articles04/ramaphosa.html 

ANC heavyweight Cyril Ramaphosa is set to meet Scorpions chief Bulelani Ngcuka today to open discussions on a possible plea bargain deal in the cases of Deputy President Jacob Zuma, his financial adviser Schabir Shaik and former Transport Minister Mac Maharaj.

The three are being probed by the Scorpions.

Zuma is alleged to have solicited a bribe from a foreign arms dealer through Shaik while Maharaj is under investigation over money paid to him by Shaik between 1996 and 2000, including the time when he was in the Cabinet.

Ramaphosa confirmed today's meeting with Ngcuka, and that he had been asked to mediate in the ongoing dispute which has rocked the ANC and the government.

"I have spoken to various parties, including ANC secretary-general Kgalema Motlanthe, but there is no mediation as yet."

Ramaphosa said he would only know to what extent he would be involved in the mediation process after today's meeting with Ngcuka.

He added that he was not aware of exactly what any deals might entail.

Ngcuka said "1 made a promise to President [Thabo] Mbeki that I am not going to comment on the ongoing investigation, and I am not going to change that."

But Scorpions spokesman Sipho Ngwema confirmed that a meeting had been scheduled between Ngcuka and Ramaphosa for today.

Three weeks ago the Sunday Times published a list of 35 questions which the Scorpions had put to Zuma following three years of investigation into SA's controversial arms deal.

It was during that week, when the country was gripped by political mud-slinging between Zuma's office, the ANC and the Scorpions, that the first attempts to reach a settlement began in secret.

Although it has been variously claimed that Shaik's brother, Yunis, or Ivor Powell of the Scorpions, initiated discussions, the Sunday Times can confirm that a flurry of behind-the-scenes talks on this issue have taken place between


The Sunday Times understands that the proposed deal with Maharaj involves ensuring that no criminal charge are brought against him but that his wife, Zarina, could face a number of charges relating to her company.

Maharaj, who this week resigned as non-executive director of FirstRand, is being investigated by the Scorpions over money he received from Shaik, whose company, Nkobi Holdings, benefited from two government tenders.

Announcing his resignation, Maharaj said that an independent inquiry by the banking group had cleared him of allegations of corruption.

He received a R1.1-million payout.

Ayob - who is former President Nelson Mandela's lawyer acted as an emissary between Maharaj and the Scorpions.

He said yesterday "I am aware of the matter, but I do not want to comment."

Maharaj said "There is nothing for me to mediate about. If Ngcuka has something to mediate about, that's fine."

Zuma and Shaik are being probed over a R500 000 bribe Zuma allegedly tried to solicit from French arms company Thales.

It is understood that the proposed deal could involve the charges against Zuma being dropped and Shaik pleading guilty to negotiated charges.

If this succeeded, a plea bargain would then be entered into with Shaik.

Shaik said he was not aware of the proposed mediation process.

"I appreciate any assistance that is rendered with regards to resolving this matter.

But until such time as such propositions are put to my legal team, I am unable to comment on what my position would be.

On Friday, Zuma submitted a response to some of the 35 questions posed by the Scorpions.

His spokesman (sic) Lakela Kauda said last night "that is the only process he is dealing with at the moment."

With acknowledgements to Mzilikazi wa Afrika, Ranjeni Munusamy, Andre Jurgens, Jessica Bezuidenhout and the Sunday Times.

 

 
This article was published on Sunday 2003-08-17 just six days before Bulelani Ngcuka and Penuell Maduna hosted a joint press conference on Saturday 2003-08-23. Below is a digital transcript of the official press release.


Thomson-CSF followed.

But looks whose on the record here as being involved :
And who else is clearly involved : Please someone tell me that there wasn't a deal that went down from the very highest level to get Jacob Zuma and Mac Maharaj off the hook.

There is the clearest of indications of interference in the prosecuting processes.

If there was any bona fide discussion regarding plea bargains then firstly Schabir Shaik would have been involved (because one could not just offer this to his co-accused and not him), and secondly all these unauthorised third party as interlocutors. Genuine plea bargain negotiations would have invloved the potential accused persons and their appointed legal representatives.

This all points to an extra-judicial process that lead to an unlawful decision (i.e. not to charge Jacob Zuma along with Schabir Shaik).and heads should start rolling faster than under the National Razor between 5 September 1793 – 28 July 1794.

 http://en.wikipedia.org/wiki/Reign_of_Terror

Do it or must I start sharpening my razor?
 

 
Press Statement by :

Bulelani Thandabantu Ngcuka, National Director of Public Prosecutions

on the :

Decision on whether to prosecute after the completion of the investigation against Deputy President, Mr Jacob Zuma, Schabir Shaik and others

23 August 2003

 
Introduction

1. Today, after a long and difficult investigation, I have come to pronounce the decision of the National Prosecuting Authority on whether to prosecute the Deputy President of the Republic of South Africa, Mr Jacob Zuma. This decision has been reached after what I consider to be one of the most difficult investigations that the National Prosecuting Authority and indeed our young democracy had to witness - the investigation and possible prosecution of the Deputy President Zuma.

2. A detailed report on the evidence and facts of this investigation has been handed over to Dr Penuell Maduna MP, the Minister of Justice and Constitutional Development, in terms of Section 35(2)(b) of the National Prosecuting authority Act, 32 of 1998.

3. As the National Prosecuting authority we are not in a position to publicly release the details of that report, as it could compromise a prosecution we intend to launch against some of the persons referred to therein. We also believe that the public release of such details might possibly infringe on those person's constitutional right to a fair trial.

A.  The reason for the NPA investigation

4. The subject matter of the report relates to an investigation that was carried out by the Directorate of Special Operations ("the DSO"). The DSO is a component of the National Prosecuting Authority ("the NPA"), established by section 7 of the National Prosecuting Authority Act, No. 32 of 1998 ("The Act"). The NPA is in turn, a constitutional institution, established bysection 179 of the Constitution and as determined in the Act. In terms of section 7 of the Act, the DSO is charged with :

"Investigating, and carrying out any functions incidental to investigations;

Gathering, keeping and analyzing information; and where appropriate, institute criminal proceedings and carry out any necessary functions incidental to instituting criminal proceedings."

5. This investigation was a complex one, which at the end of it required the exercise of discretion whether to prosecute any person or persons. In deciding whether to prosecute, members of the Prosecuting Authority are guided by the prosecution policy and policy directives determined and issued in terms of section 24(1) of the Act.

6. Part 4 of the Prosecution Policy is particularly relevant and reads as follows:

In deciding whether or not to institute criminal proceedings against an accused, prosecutors should asses whether there is sufficient and admissible evidence to provide a reasonable prospect of a successful prosecution. There must indeed be a reasonable prospect of a conviction, otherwise the prosecution should not be commenced or continued.

This test of a reasonable prospect must be applied objectively and after careful deliberation..."

7. As a constitutional institution, the NPA is a fundamental pillar of democracy, whose primary function is the promotion of the rule of law in the area of criminal justice. There is a necessary relationship between the principle of democracy and the rule of law, because for a political system to have legitimacy, it must adhere to constitutional values, enforce the rule of law, uphold law and order and ensure peace, safety and security.

8. The rule of law implies that law is supreme and applies equally to all; it requires the creation, maintenance and enforcement of an order of laws, which are applicable to all and preserve and embody the observance of law by all. The primary reason for the importance of the rule of law is that it is inherently necessary to support, sustain and maintain the emergence and growth of democracy.

9. In pursuit of the rule of law, and therefore in support of democracy and constitutionalism, section 179 of the Constitution enjoins the Prosecuting Authority to exercise its functions without fear, favour or prejudice. This presupposes that members of the prosecuting authority must at all times act reasonably, lawfully and constitutionally, fairly and efficiently, and uphold the fundamental rights of all citizens, including accused persons.

10. Any matter that is investigated and/or prosecuted by the prosecuting authority is obviously and necessarily important and significant. This matter, however, as will appear below, is of particular significance and, as already stated, significantly in the public interest. It is a matter, which involved allegations of corruption. Corruption, by its very nature, undermines any possibility of political stability, democratic governance and real enjoyment of constitutionally guaranteed economic, social and political rights. In the absence of strong constitutionalism and the rule of law to tackle problems of democratic governance, the enjoyment of economic, social and political rights is far from being real.

B.  Focus, purpose and nature of the report to the Minister

11. The report that was handed over to the Minister has been written to account for the two year-investigation into allegations of corruption flowing from Nkobi Group's acquisition of shareholding in African Defence Systems ("ADS") and the role played by the Deputy President, Mr Jacob Zuma in this arrangement.

12. The primary purpose of the report is to explain why we acted in the way we did, what led to the investigations, how we conducted it and what we have found.

13. We express the hope that the report would put the investigation into perspective in view of media distortions, disinformation campaigns and criticism against the investigation; and their combined toll on the personal and professional lives of people and parties involved.

C.  The endeavour at all times to act reasonably, lawfully and constitutionally

14. The decision to launch an investigation against the Deputy President was taken after careful consideration of all the implications of such an investigation. this because on the one hand, public interest requires that allegations of corruption be investigated properly, and on the other, that where aspersions are cast on the credibility of the Deputy President of our country, we act with due diligence.

15. What has initiated this investigation was the receipt of a faxed letter concerning the alleged attempted solicitation of bribes from the Thomson Group in connection with the arms acquisition process. Correspondence received from a whistle-blower implicated Messrs Thetard, Shaik and the Deputy President in this unfortunate affair. This, together with evidence obtained from an auditing firm, and other surrounding irregular factors, informed our decision in this matter. In the result, we were satisfied that we had a reasonable suspicion and thus no choice but to continue.

16. We also considered whether it was in the public interest or in the interest of the administration of justice to initiate such an investigation. we held the view that it was important for our institution, the Deputy President and our country that an investigation be authorised in order to dispel any notion of impropriety.

17. From the outset we were concerned abut the need to ensure that we conducted this investigation as discreetly as possible. We were mindful of the harm or prejudice the media might cause both to the integrity of the investigation itself and the credibility of the Deputy President, should our investigation be known to them. We have tried to maintain a balance between conducting a rigorous and thorough investigation on the one hand, and according the Deputy President the deference due to his office, on the other.

18. In doing so we have had to adopt procedures, which we do not normally use. These include the following :

a) The authorisation for the investigation was crafted in such a way, that no reference was made specifically to the Deputy President.

b) when we took the decision to conduct searches in respect of properties and/or premises belonging to Mr Schabir Shaik, Nkobi and the Thomson groups, we excluded his premises and offices.

c) After obtaining legal advice, we avoided any reference to him in our application for a search warrant brought before a judge in chambers. Instead the phrase "a high-ranking government official, called Mr X", was used. This position was also adopted in all applications for mutual legal assistance and search warrants in foreign jurisdictions.

d) When we realised that the Deputy President's identity was deliberately disclosed by Mr Shaik in his 2nd application in the Durban High Court (challenging our authority to question him in terms of Section 28 of the NPA Act), we immediately wrote a letter to the Minister of Justice advising him to inform the Deputy President of this development, in order for him to take whatever action he deemed necessary. The Minister did so.
e) during February this year we intimated counsel for Mr Zuma our willingness to provide him with written questions in advance, regarding the issues we require a response to. He apparently refused. We could have subpoenaed him then, but opted not to do so. In June this year when the issue recurred, we provided him with a written set of questions and invited him to respond, if he so wished.

20. Our investigating team quietly went about their business, without putting any of the information around Mr Zuma in the public domain. Only in November 2002, did the Mail & Guardian publish an article about this investigation, having obtained access to the affidavit of one of our investigators, which by then was a public document in an application in the Durban High Court, brought by Mr Shaik.

21. At the time we preferred not to join the media and public clamour for confirmation and debate. This we did, because we do not, as a rule, disclose details about sensitive investigations that are underway. Equally, we do not inform subjects or suspects that we are investigating them. It defeats the purpose of the exercise. Yet, in this particular instance, we made an exception.

22. Both the Minister Maduna and the National Director informed the Deputy President about this investigation shortly after it started.

23. In our view the investigating team has at all times acted in accordance with constitutional imperatives and the law relating to criminal investigations. Almost every "invasive" action such as searches and confiscations have been subjected to judicial oversight.

24. We did not leak the questions put to the Deputy President to anyone else. Only two people in the entire organisations had the questions, the National Director and one of his deputies. The questions were given to the lawyers of the Deputy President. They would know best.

25. We have never asked for nor sought mediation. We do not need mediation and we do not mediate in matters of this nature. However, we have no objection to people making representations to us, be it in respect of prosecutions or investigations. In terms of section 22(4)(c) of the Act, we are duty bound to consider representations.

D.  The ambit of the investiation

26. The investigation covered the following :
27. Evidence was obtained through searches and seizures that were conducted in Durban, France and Mauritius. Documentation was obtained from various entities, including 118 bank accounts relating to numerous entities and individuals. A vast number of witnesses from across the business and private spectrum were interviewed, consulted and questioned over the period.

28. The work of the investigating team has been compounded in no small measure by the complexity and magnitude of the case. Much time has been spent on drafting applications for search warrants, orders and obtain evidence in three foreign jurisdictions and affidavits opposing litigation in the High Court. Because this is to a large extent an exercise in documentary analysis, the process of obtaining company records, accounting files and bank statements, further account for the time spent. Issuance of subpoenas and questioning of reluctant witnesses scarcely available, whose legal representatives often wanted further particulars before agreeing to appear, further complicated things.

29. The French authorities have yet to respond to and comply with our request for mutual legal assistance sent to them earlier this year.

30. On 26 June 2002 Mr Schabir Shaik was summoned to appear before investigators for questioning. He objected to the proceedings, questioning the validity of section 28 (6) of the Act. Judge McClaren delivered judgment in our favour on 18 July 2003 and on 6 August 2003 grated Mr Shaik leave to appeal. This one-year delay and the current effect of the appeal caused us to rearrange our approach to the investigation.

The Decision

31. The investigating team recommended that we institute a criminal prosecution against Deputy President Zuma.

32. After careful consideration in which we looked at the evidence and the facts dispassionately, we have concluded that, whilst there is a prima facie case of corruption against the Deputy President, our prospects of success are not strong enough. That means that we are not sure if we have a winnable case.

a) Accordingly, we have decided not to prosecute the Deputy President;

b) We tested our decision with a Senior Counsel who is very skilled in these types of matters, and he concurred with our decision;

c) As a matter of courtesy we informed Deputy President Zuma's counsel of this decision;

d) We are charging Mr Schabir Shaik for various counts of corruption, fraud, theft of company assets, tax evasion and reckless trading;
e) We have decided to prosecute the Nkobi group of companies and Thomson CSF on contraventions;

f) The legal representatives of the relevant parties have been informed of this decision;

g) We will be referring the evidence we have against Alain Thetard, Perrier and international companies like Thomson to the French authorities for them to take appropriate action;

h) We will be referring the issue around declaration of gifts and donations received by the Deputy President to Parliament for their consideration.

Conclusion

33. The national interests of our young democracy and institutions of governance demand that we be satisfied that the facts are unassailable before we decide to institute criminal prosecutions. In a case of this nature we can't prosecute if it is not sufficiently winnable. At the same time, given the public interest in this matter, we cannot continue with a prolonged investigation that cast a shadow over the Deputy President of the country, whilst we are not assured of the outcome.

34. The manner in which this matter has been handled in the past few months leaves much to be desired. However I would be failing the constitution and the people of our country as the national Director of Public Prosecutions if I were to rush headlong into prosecution simply to prove a point. This is not the time for point-scoring. I have to put the interests fo the country above personal displeasure.

In the end, this case demonstrated the maturity of our democracy. We conducted this investigation without any undue influence from the executive or any arm of our government. That we were able to finalise this investigation and make the decisions that we have, without fear, favour or prejudice is victory to our young democracy.

These have been very difficult times to al who were involved in this investigation in our organisation. I therefore want to thank the member who were involved in this investigation for their hard work and the sacrifices they have made.

Sipho Ngwema, our spokesperson, has gone through a very difficult time in the past few weeks trying to take some of the pressure off me. Ours is a thankless job. I thank Sipho for his support.

More importantly, I want to extend my greatest appreciation to Dr Penuell Maduna, the Minister of Justice, for his unstinging (sic) support. Minister, you've once more demonstrated political leadership.

The National Prosecuting Authority will continue to strive to realise its vision of "Justice in our society so that people can live in freedom and security."

Thank you.

With acknowledgement to Bulelani Thandabantu Ngcuka, National Director of Public Prosecutions.

 http://www.armsdeal-vpo.co.za/special_items/statements/ngcuka_statemnt.htm