Ground-breaking SCA ruling trims Zuma options

The decision by the SCA, setting aside the judgment of Judge Chris Nicholson, gives the green light for the prosecution to proceed, and a report in The Witness quotes legal sources as saying the matter could technically be placed back on the court roll 'tomorrow'. But the reality is that legal red tape will probably ensure that the soonest it is likely to be re-enrolled is around February. The report suggests the ground-breaking ruling of the SCA, which slammed Nicholson for failing to confine his judgment to the issues before court and for overstepping the limits of his authority, will in all likelihood require that another trial judge be appointed to hear the matter. It says its sources have suggested that the NPA - unhappy with the judgments to date of two judges so far appointed by KZN Judge President Vuka Tshabalala (first Judge Herbert Msimang and then Nicholson) - may want Tshabalala to consider appointing a full Bench of three judges to hear future applications, including an application for a permanent stay of prosecution that Zuma plans to bring if the trial proceeds. The Witness says it has confirmed that charges are also going to be reinstated by the state against Zuma's former co-accused, French-based arms deal company Thint. The charges were provisionally withdrawn against the company and its director, Pierre Moynot, in the wake of Nicholson's ruling. Full report in The Witness

The next step, according to Zuma's attorney, Michael Hulley, is to make representations to acting prosecutions head Mokotedi Mpshe in the hope of persuading him to withdraw the charges. 'The NPA has indicated its willingness to consider such representations and the parties are currently discussing the time frames within which this should be done,' Hulley is quoted as saying in a Cape Times report. He also said Zuma's legal team would examine the SCA's unanimous dismissal of Nicholson's ruling that Zuma's prosecution was invalid with a view to appealing against it in the Constitutional Court. The report says that while confirming it would consider Zuma's representations, the NPA is keeping mum on whether it will bring an application seeking Nicholson's recusal from his current position as Zuma trial judge. The paper says its justice sources said Zuma's prosecutors were 'concerned' about the prospect of Nicholson continuing with the case. 'How will the state proceed in front of Nicholson if Zuma brings his much-promised permanent stay of prosecution application and argues that the case against him should be thrown out because it was politically driven? 'Nicholson has already found as fact that there was political interference - without any evidence (being led) ... the NPA cannot gamble on him disengaging himself from that belief,' the source is quoted as saying. NPA spokesperson Tlali Tlali said the recusal issue 'might come into consideration' when the prosecuting team meets later this week. Full Cape Times report (subscription needed) See also a report on thee News24 site

A Beeld report suggests the judgment signals the end of Zuma's battles to dispute the legal technicalities of his prosecution. It quotes an unnamed source close to Zuma as saying the ANC leader is wary of taking the matter to the Constitutional Court or bringing an application for a permanent stay of prosecution, as this will enforce 'a perception that he is playing for time'. The source suggested there was 'every possibility' of a plea bargain arrangement. Full Beeld report

The SCA was scathing of Nicholson, describing his finding of political meddling as 'erroneous', 'unwarranted' and 'incomprehensible'. A report on the Legalbrief Today site quotes acting Deputy Judge President Louis Harms Zuma, who delivered the judgment on the appeal by the National Director of Public Prosecutions against the High Court ruling that halted the prosecution of Zuma, as saying: 'Political meddling was not an issue that had to be determined. Nevertheless a substantial part of his judgment dealt with this question. He changed the rules of the game, he took his eyes off the ball.' He said Nicholson had overstepped the limits of his duty as a judge. His findings ultimately led to the axing of President Thabo Mbeki. 'The (findings) involving Dr (Penuell) Maduna, Mr Mbeki and all the other members of Cabinet... were not based on any evidence or allegations. They were instead part of the judge's own conspiracy theory and not one advanced by Mr Zuma,' said Harms. According to Business Day, the SCA said Nicholson had failed to confine his judgment to the two issues before the court. He failed by deciding matters that were not relevant, 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. Zuma relied on section 179(5)(d) of the Constitution, which states that a National Director of Public Prosecutions (NDPP) might review a decision to prosecute or not to prosecute after consulting the relevant Director of Public Prosecutions and after taking representations from the accused. Harms said whether the failure to provide Zuma with a hearing was deliberate or politically motivated had nothing to do with his causes of action. 'He was, as a matter of law, either entitled to a hearing or he was not. If he was entitled to one, the reason for the failure to afford him one is completely immaterial,' the judge said. Full Business Day report Full report on the Legalbrief Today site

Among other things, the SCA judges were found that the decision by acting National Director of Public Prosecutions Mokotedi Mpshe to charge 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 of the prosecution's application to strike out paragraphs alleging political meddling in the decision-making process of the NDPP. A Business Day report quotes Harms as saying it would be naive to pretend that the SCA 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 SCA 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 had concluded Maduna acted improperly in attending the press conference. Maduna's supposed machinations around the Ngcuka decision were then extrapolated to cover Mbeki and the whole Cabinet. Full Business Day report Judgment

A senior lawyer says he has never seen such a 'vicious' criticism by one judge of a fellow judge. 'I have never seen anything like that,' an unnamed senior lawyer told Business Day. 'It was really the most sustained attack on a judge I have ever seen. The puzzling thing for me is why they had to go so far.' He told the paper that while judges were often criticised by their seniors in higher courts, 'to go so far as to set out what constitutes the judicial function to another judge is something I've never seen before. If I were in (Nicholson's) shoes, I would seriously reconsider my position on the Bench.' Another senior lawyer said Harms' judgment was 'not unexpected' because Nicholson's judgment 'was fundamentally wrong'. But he said he thought Harms' judgment was unlikely to affect Nicholson's career or 'detract from his earlier judgments or his role in the fight against apartheid'. Full Business Day report

However, colleagues reckon Nicholson will take the criticisms 'on the chin'. A report in The Mercury notes that although the judgment left many wondering how he apparently got it so wrong, an unnamed colleague said: 'In the legal profession you have a thick skin. Hundreds of cases go on appeal and get overturned, just like this one'. Another colleague is quoted as saying: 'Like any case that goes on appeal, Nicholson was aware that other judges might disagree with his findings. You can take any set of facts and draw different inferences from them. ...the ruling does not make Nicholson a bad judge. He will certainly respect the SCA judges' findings, even though he might not agree with them, just as they did not agree with him'. Full report in The Mercury (subscription needed)

The judgment won high praise from legal commentator, Professor David Unterhalter, who said it sent a strong message that the country's judiciary is able to perform its constitutional duties without being influenced by political developments. Unterhalter is quoted by SABC News as saying: 'I think it shows that we have a very robust and independent judiciary. It's not influenced by political events... It speaks about the strengths of our judicial system, even where very powerful people are involved, and very important political issues are at stake.' Full SABC News report

The ANC was quick to point out the judgment had nothing to do with the guilt or otherwise of the ANC president. 'Nor does it make any pronouncements on the merits of the charges previously brought by the NPA,' said the party. 'The ANC respects the decision of the court without reservation. The ANC and its president reserve the right to pursue all options available in law. The ANC reiterates its position that the judgment will not affect the decision of the ANC that Zuma be the ANC's presidential candidate for the 2009 elections. The ANC will not accept that a decision democratically taken by the ANC membership at its national conference be reversed on the basis of untested allegations.' According to a Mail & Guardian Online report, Leon Joubert, the DA spokesperson on justice, said: 'I concur fully with Judge Harms. In principle it is a very sound judgment. What will happen now is they will have to recharge Mr Zuma. It is back to square one.' He added that the judge made some interesting points in his ruling, saying that Mr Zuma was never prevented from having his day in court. According to a report on the News24 site, spokesperson Tlali Tlali said the NPA was 'elated'. It was pleased about the 'correctness' of its approach being endorsed by the court. Full Mail & Guardian Online report Full report on the News24 site

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, suggests a Business Day editorial. It notes, however, that 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. The editorial says the Constitutional Court option for Zuma seems 'a bit of a long shot, given that five Appeal Court judges were unanimous in their decision yesterday'. 'And the trouble with the settlement 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.' Full Business Day editorial

Concern has been raised about the impact of the decision on international investors. A report on the IoL site quotes Kevin Lings, economist at STANLIB, as saying 'the Zuma issue has to be resolved from an international investment point of view'. 'South Africans have lived with the Zuma issue for a long time - but for foreign investors, the decision will mean uncertainty - and questions on economic policy will arise, too'. Economist Dawie Roodt, of the Efficient Group, however, said the SCA's decision on Zuma was 'positive' as it showed that the country's institutions were still respected and still strong. Full report on the IoL site