The judgment that was the catalyst for former president Thabo Mbeki being fired *1 only four months ago was overturned in the Supreme Court of Appeal yesterday.

In a ground-breaking ruling, five appeal court judges:

•Ruled that Judge Chris Nicholson’s findings on political interference in the work of the National Prosecuting Authority (NPA) overstepped the limits of his authority, and that he failed to confine his judgment to the issues before the court;

•Found that the decision by acting national director of public prosecutions Mokotedi Mpshe to charge African National Congress (ANC) president Jacob Zuma was not a review of a decision by former prosecutions chief Bulelani Ngcuka, which was no longer extant; and

•Ordered that Zuma pay the costs *2 of the prosecution’s application to strike out paragraphs alleging political meddling in the decision-making process of the national director of public prosecutions.

Last September, Nicholson declared invalid the NPA decision taken in December 2007 to charge Zuma on 17 counts, including charges of racketeering, corruption, money laundering and fraud.

Nicholson also inferred that there was political meddling in the work of the prosecution, and said Mpshe did not maintain his independence, and was not in a proper position to carry out his duties to honour the promise to hear representations from Zuma or to respond properly to the request to receive representations.

A week after the ruling, the ANC recalled Mbeki from his post as president.

Appeal court deputy president Louis Harms delivered the unanimous judgment of the five judges.

Harms said that it would be naïve to pretend that the appeal court was oblivious to the fact that Nicholson’s judgment had far-reaching political consequences, and that there might be an attempt to employ his judgment to score political points.

The judges found Zuma never accused former justice minister Penuell Maduna of acting improperly in going with Ngcuka to a press conference in 2003, where Ngcuka announced he would not charge Zuma.

Nicholson concluded Maduna acted improperly in attending the press conference *2.

Maduna’s supposed machinations around the Ngcuka decision were then extrapolated to cover Mbeki and the whole cabinet.

“Once again, the ‘strategy’ involving Dr Maduna, Mr Mbeki and all the other members of cabinet, as well as the causal connection between the Ngcuka decision and Mr Mbeki and the cabinet as found by the trial judge, were not based on any evidence or allegation.

“They were instead part of the judge’s own conspiracy theory, and not one advanced by Mr Zuma.”

Harms said Nicholson also attacked the merits of the Ngcuka decision, finding it was “bizarre”, and that it brought justice into disrepute.

He said the merits of the decision were not before Nicholson, and were irrelevant.

“It is correct that if there is prima facie evidence of a crime in the sense of reasonable prospects of success, the NPA should, in the absence of other germane considerations, initiate a prosecution.

“But the term ‘prima facie evidence’ has more than one connotation, and may mean, as Mr Ngcuka conveyed, that there may be evidence of the commission of a crime which is nonetheless insufficient to satisfy the threshold of a reasonable prospect of success, especially if regard is had to the burden of proof in a criminal case.”

Harms said it made no sense to strike out allegations of political interference made by Zuma and objected to by the national director of public prosecutions.

“The damage has been done,” he said.

“This does not mean that the order of the court below should stand.”


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