Zuma decision: Something fishy?

Paragraph 195 of Judge Chris Nicholson’s judgement deals with the overall conspiracy allegations of Jacob Zuma in somewhat fishy terms. In essence, it’s the old sprat-to-catch-a-mackerel routine in that the conspirators, via the NPA, would use Thint (sprat) as bait to nail Shaik (mackerel) and once he was convicted they could bring down the big fish: Zuma himself. This was to be achieved by first relieving him of the deputy presidency and later, if necessary, charging him.

I was relieved to see that the judge didn’t decide to start going on about sardines, trawlers and seagulls, in what seems to pass for some sort of modern day French philosophy — at least among the football fraternity, that is.

Regardless, his decision on Zuma’s application before the Pietermaritzburg High Court last Friday will occasion substantial repercussions for Mbeki, the government and the ANC in the week ahead.

If you were in any doubt as to the president’s precarious position going into the weekend, those should have been dispelled by now. The knives are out wherever you look.

So I figured, why not grab your popcorn, some Valoid and a goodly amount of Prozac and examine the judgement a bit closer.

At the outset the judge was at pains to point out that his decision was based upon a procedural flaw and not on the merits of the case. Accordingly, while there might be merit in the conspiracy theories, this does not clear the ANC president of the charges but rather invalidates them and requires the National Prosecuting Authority (NPA) to cure these defects before proceeding again, (unlikely as this might seem).

His judgement calls for a commission of inquiry into the arms deal, styling it a “cancer” that is devouring the body politic”. In tandem, paragraph 32 of the decision is particularly fascinating in that the judge says that “like a blind Sampson” the applicant (Zuma) leaves no doubt that if he is going down, others will follow him. In essence, that he will collapse the whole temple which, as the judge points out, seems to indicate that he has information which could bring down many others.

I’m sure that will have a few Cabinet members dashing off to the submarines for a spot of deep-sea fishing. I’ll just pop out and get my pencils sharpened.

Patricia de Lille has apparently already sharpened hers and confirmed she’ll be tabling a motion in Parliament for just such an inquiry. Sure to cheer the ministers up no end.

What many will find of interest is the fact that the judgement emphasises that the independence of the NPA is set out in the Constitution and that the courts are obliged to monitor and halt any interference by the executive.

In terms of the main application, the judge confirms that the crisp issue before him is whether the applicant was entitled to make representations to the NDPP before being prosecuted. If he was, and was denied this right, there is a procedural flaw in the prosecution. He then turned to the provisions of Section 179(5)(d) of the Constitution as well as the contentions of both parties. See paragraphs 44 to 53 of the judgement because this sets out the submissions of both parties on this point.

Thereafter he goes into substantial detail on their submissions and the prevailing law in accordance with his interpretation of it.

What is also significant is at paragraphs 90 to 94, where he makes reference to the NPA Act, certain of its provisions and the criminal offences which arise when parties try to interfere with decisions of this authority to prosecute. This could be in respect of instituting or withdrawing a prosecution. Specific mention is made of “political” interference and the seriousness of the offence which could result in a fine and/or up to 10 years imprisonment.

Both factions and their allies might want to make a special note of these sections.

The judge was of the view that the decision not to prosecute Zuma at the time of the Shaik trial was “strange” and “bizarre” in light of the admission by Ngcuka that the state had a prima facie case. Not to do so went against the Constitutional imperatives to prosecute without fear or favour. This, I would imagine, will leave the Shaik legal team feeling somewhat vindicated, although this does not go to the merits of their case.

In addition the judge pointed out that in cases such as corruption the more senior the suspect the more compelling it should have been to proceed at that time. This paints Ngcuka and the Minister of Justice at that time in a particularly bad light.

He did however point out that while the Shaik decision did not provide Mbeki with a basis for dismissing his deputy, he did possess those powers in terms of section 90 of the Constitution. The judgement of Judge Squires in the Shaik decision was not binding on Zuma, as he was not before that court.

In paragraph 159 the judge confirms that Zuma has alleged that his dismissal and charge was part of a political strategy to discredit him ahead of the leadership challenge at Polokwane. While the judge concedes it is difficult for Zuma to reach into the mind of the opposing camp there are certain things that are well known to the public, such as the intense rivalry between Mbeki and Zuma and the polarisation it has occasioned pre- and-post Polokwane. This goes materially to the issue of allowing Zuma the opportunity of making representations to the NDPP.

The judge specifically refers to Ngcuka’s startling statement made at the time of the Shaik trial whereby he expresses his appreciation of the support of the Minister of Justice, Dr Penuell Maduna. He suggests that Maduna’s leadership left a lot to be desired and it may well be inferred that this was the reason for Zuma not being prosecuted at that time.

Stock tip — Buy “something Fishy”
If that was fishy then the judge had a whale of a time looking at the decision to fire Pikoli as a result of the breakdown in his relationship with Minister of Justice, Brigitte Mabandla. The president and justice minister’s role (both Maduna and Mabandla) in the cases of Selebi and Zuma, leave much to be desired. Take a look from paragraph 200 onwards. As the judge correctly points out, in terms of decisions to prosecute, there should not have been a relationship between Pikoli and Mabandla (nor Ngcuka and Maduna for that matter).

At paragraph 210 the judge states that the timing of the indictment against Zuma in 2007, coming just after his victory at Polokwane, was very unfortunate. He suggests that appointing the NDPP be done in the same way as judges, as this would ensure their independence from the executive. Moreover, the conduct of Maduna and Mabandla could be seen as a reflection of the Cabinet as a whole, save those who (heaven forbid) resigned, including Mbeki.

The judge then confirms that Zuma had a legitimate expectation for his representations to be heard by Pikoli, or later Mpshe, but was denied the same which occasioned a procedural defect, rendering the charges invalid at this point.

The judges orders may be seen at paragraph 247.

While there may be something fishy about the conduct of our politicians, don’t let me catch any of you lot carping on about this. You might just land up between the devil and the deep blue sea.

One bit of fabulous news was Jacob Zuma telling everyone to tone down their criticism of Mbeki and focus on the important issues ahead. Unity at last?

Holy mackerel!