The Supreme Court of Appeal’s (SCA’s) recent decision that charges against African National Congress president Jacob Zuma must stand contains this intriguing sentence: “A prosecution is not wrongful merely because it is brought for an improper purpose.”

The remark is contained in a lengthy section of the judgment read by Judge Louis Harms that explores the independence of the National Prosecuting Authority (NPA) from political interference.

This was not an area that the SCA or high court should have pronounced on at all. High Court Judge Chris Nicholson, whose legal justifications for setting aside the charges against Zuma were trashed by the SCA, admits as much in his judgment. And, according to the SCA, Zuma made it clear that he was not attacking the merits of charges against him, or questioning the NPA’s motives in pursuing them. His application had been brought on procedural grounds only ­ primarily that, under section 179 of the constitution, he should have been invited to make representations before the NPA revisited an earlier decision not to prosecute and decided to charge him after all.

Harms says that he felt compelled to address the issue of political meddling only to prevent Nicholson’s ruling from setting dangerous legal precedents.

Nicholson’s startling findings vindicated Zuma’s supporters, who have always maintained that Zuma is the victim of a political conspiracy hatched by former president Thabo Mbeki.

The media has a field day when judges make statements such as these. They can be printed as gospel until another, more senior, judge comes along and trashes them. Unfortunately, as Harms correctly points out, many of Nicholson’s findings were not substantiated by evidence before the court. He therefore undermined the integrity of court processes.

But that does not mean, as Harms’s remark on wrongful prosecution implies, that the prosecutor’s motives when bringing charges against someone are irrelevant. Harms points out a prosecutor’s impure motives don’t make it wrong for him to go after a criminal, in the same way that “the worst motive does not render an otherwise legal arrest illegal”. In effect, he is saying that it doesn’t matter if politicians have abused state resources to dig up dirt on their rivals as long as it sticks.

No reasonable person can disagree with this as a statement of law. It is exactly the sort of position one expects a judge to take. But it also reminds me of how, during a short visit I made to Rwanda in 2006, hardly a day went by without a general or cabinet minister being charged with genocide. It seemed inconceivable that Genocidaires could occupy senior posts in President Paul Kagame’s government for a decade after the genocide. You were never really sure if their prosecution was part of a political purge or if they really had been involved in the genocide.

The two options are not mutually exclusive. But as the Nicholson judgment illustrates, if political motives are found lurking behind the charges, their credibility is undermined.

Moreover, the SCA decision should never be allowed to obscure the fact that not everyone enjoys the same attention from the NPA for the same crimes. It may be sheer coincidence that prosecutors pursued Zuma with more vigour than other equally deserving high-profile candidates while he was locked in a political fight to the death with Mbeki, but no one in their right mind believes this *1.

Harms concludes that the notion that Mbeki, former justice minister Penuell Maduna and former national director of public prosecutions Bulelani Ngcuka *2 sat in a dimly lit room sipping single-malt whisky while plotting Zuma’s downfall is a conspiracy theory cooked up by Nicholson.

Harms may be right, but overstates the point. He concedes that NPA boss Mokotedi Mpshe is a political appointee obliged by law to interact with the justice minister, who exercises “final responsibility” over his office, whatever that means. So it’s hardly inconceivable that Mpshe might execute his legal duties in a way calculated to please his bosses, especially the president, who has the power to hire or fire him.

Harms may have corrected what was clearly a badly argued judgment by Nicholson, whose cardinal errors in law included making damaging findings against prominent figures without affording them the opportunity to defend themselves. This country’s legal system will no doubt be improved by the SCA ruling.

But Nicholson’s judgment remains an important reminder that the abuse of judicial processes for political gain undermines the credibility of the very institutions that underpin our democracy and serve as our last line of defence against the arbitrary exercise of power by the state.

Hofstatter is contributing editor.

With acknowledgements to Stephan Hofstatter and Business Day.