Legal sources speculate on judge's recusal

The judge who quashed Jacob Zuma's prosecution will be the one who decides whether he is guilty of corruption should the case against the ANC president go ahead.

And Zuma's prosecutors are less than happy about the prospective return to the "Zuma bench" of Judge Chris Nicholson, the judge who changed South African history when he ruled that there was "merit" to Zuma's suspicions that ex-president Thabo Mbeki had meddled in his prosecution.

Justice sources have confirmed that there is a "serious debate" in the national prosecuting authority (NPA) about whether, in the event of the Supreme Court of Appeal confirming tomorrow that Zuma's prosecution was valid, the state should seek Nicholson's recusal.

Pointing out that Zuma's legal team had repeatedly stated that it would seek a permanent stay of his prosecution on "political conspiracy" grounds if the state's case against him proceeded, a source close to the Zuma prosecution team said: "It would be very difficult for the NPA to argue against Zuma's conspiracy claims in front of a judge who has, as a matter of fact, found them to be credible."

An independent legal source further explained that the prosecuting authority could argue that Nicholson had been seen to make "very negative findings of political conspiracy" against the state and therefore, was seen to have "a definite and particular bias".

"The judge may be capable of looking beyond his previous statements if he continues to preside in any future Zuma trial, but he will inevitably be haunted *1, in the eyes of the public, by what he has said before."

It is understood that no decision has been taken about whether the state will seek Nicholson's recusal, with Tlali Tlali, the prosecuting authority spokesperson, yesterday declining to comment on this.

Meanwhile, a source in the Zuma camp has said that any mooted recusal of Nicholson "would have no merit". "The state is unhappy about comments made by the judge in response to its own insistence that Mr Zuma's suspicions about the dubious manner in which he has been prosecuted must be struck out [from his court documents].

"The judge found that he could not rule that the expression of Mr Zuma's fears was scandalous, irrelevant and vexatious and refused the state's request …

"To seek Judge Nicholson's recusal on the basis of his remarks would be ludicrous," the source said, adding that Zuma's legal team would be "very likely" to oppose any such attempt by the state.

It is understood that Zuma's legal team are not planning to bring a permanent stay application immediately after the appeal court's decision, should it go against them.

Lawyers for Zuma and the NPA agreed in May last year that Zuma's team would bring a permanent stay application if Zuma failed to have his prosecution declared invalid and, if the stay application failed, Zuma would then appeal both cases to the Constitutional Court.

It now seems, however, that this arrangement is no longer in place.

Judge Willem Heath, who is one of the ANC's main legal advisers on the case against Zuma, strongly suggests in an article written for The Sunday Independent that Zuma will take any potential loss in the appeal court straight to the Constitutional Court.

Zuma's legal team will couple their expected Constitutional Court appeal battle with a detailed set of representations to the NPA about why the state should withdraw the charges against Zuma. Should the NPA refuse to accept Zuma's arguments and explanations, Zuma's legal team will then have the option of taking that decision on review in the high court - and beginning another legal wrangle with the state *2.

With acknowledgements to Karyn Maughan and Sunday Independent.