SCA overturning ruling on Zuma neither vindicates nor incriminates Mbeki

Yesterday’s decision by the Supreme Court of Appeal has overturned the September 12 2008 decision of Judge Chris Nicholson in the Pietermaritzburg High Court, in terms whereof he had held that the National Directorate of Public Prosecutions were obliged to afford ANC President Jacob Zuma the opportunity of making representations before a decision was taken to recharge him.

The upshot of all of this is that Zuma is currently facing the charges that were brought against him prior to the Nicholson decision, which has now for all intents and purposes, been extinguished. The NPA are not required to charge or recharge him; he is charged as a result of the SCA decision.

Before moving on to the legal options available to Zuma, I believe it worth pointing out a couple of positives that have caught my eye:

Firstly, the responsible and decisive manner with which the ANC has responded to the decision of the SCA. They accepted the decision without reservation and undertook to deal with the matter in terms of our legal system. This is a vast improvement and demonstrates a discipline that was heretofore lacking.

Secondly, the manner in which the judges of the SCA, in no uncertain terms, made known their displeasure at the conduct of their learned colleague in Pietermaritzburg. They confirmed that the matter, which Nicholson had before him, most certainly did not require judicial interference or meddling in politics.

They further confirmed that while a judge is fully entitled to hold political views they should not be expressed in or form part of his judgments. Nicholson had been asked to hear an application in respect of a section contained in the Constitution, relating to a point of legal procedure, which did not necessitate him going the extra, politically-damaging mile.

The SCA judges dismissed an application for a “political meddling” finding to be scrapped but declined to get involved in the political debate save to frown upon Nicholson’s conduct. This is the judiciary flexing it’s own muscle where a judge, while confirming the independence of the judiciary, has taken off at a tangent and entered the political arena.

While this may be scant consolation to former president Mbeki, seeing as though he was recalled by the ANC primarily on account of the judgment concerned, it will further demonstrate why the executive and the judiciary should not interfere with each other unless they are expressly called upon or required to do so.

Nicholson’s judgment has had major political ramifications and will be seen as a turning point in South African history. It has occasioned the recall of a president and the formation of a breakaway party.

In terms of Mbeki, however, he cannot claim that the decision exonerates him from claims of political interference. What the judgment says is that the judge should not have meddled with politics in his decision at all. The merits and demerits of whether Mbeki did interfere with the decision to charge Zuma and any other allied debates were, in the main, swept aside as irrelevant to the matter before Nicholson’s court ie Should the NDPP have allowed Zuma to make representations before recharging him?

As things stand Zuma has inter alia the following legal options available to him:

He can appeal the decision to the Constitutional Court — subject to him applying for and being granted leave to appeal the decision of the SCA by the SCA — or apply for a permanent stay of prosecution. If he does nothing he will be required to return to the PMB High Court on a date that has to be arranged between the parties. At that appearance a trial date will be set.

There has been talk of a possible deal between the NPA and Zuma although there are no firm details on this issue. Mike Hulley, Zuma’s lawyer, has said that representations to explain Zuma’s position will be made to acting NPA head Mokotedi Mpshe. My own view has long been that a legal or political solution would be in the interests of this country (see many previous articles), which has surprisingly found another voice in the form of the Freedom Front .

As always, I remind readers that the NPA are simply doing the jobs that YOU pay them to do and taking out your frustrations on them is not only unhelpful, it’s unfair. The criminal justice system and the judiciary are there to protect YOU and uphold the law of the country.

In terms of Zuma, he is innocent until proven guilty by a trial court on the merits of the charges. Afford him the dignity of that position. In terms of his utilising the various avenues available to him in terms of our law – those are legal, within the system, his right so to do and available to all South Africans.

No doubt the opposition parties will draw attention to the cloud hanging over Zuma’s head, which is within their political right to do. If they didn’t do so they’d be failing in their duty as opposition parties.

Game and second set NPA.

New balls please.