Paragraph 37 of the Supreme Court of Appeals judgement handed down by Judge Harms in the matter of the NDPP versus Jacob Zuma — an appeal against the decision by Judge Nicholson in Pietermaritzburg which occasioned ANC president Jacob Zuma’s charges being withdrawn — sets out the following:
“[37] The court dealt at length with the non-contentious principle that the NPA must not be led by political considerations and that ministerial responsibility over the NPA does not imply a right to interfere with a decision to prosecute (para 88 et seq). This, however, does need some contextualisation. A prosecution is not wrongful merely because it is brought for an improper purpose. It will only be wrongful if, in addition, reasonable and probable grounds for prosecuting are absent, something not alleged by Mr Zuma and which in any event can only be determined once criminal proceedings have been concluded. The motive behind the prosecution is irrelevant because, as Schreiner JA said in connection with arrests, the best motive does not cure an otherwise illegal arrest and the worst motive does not render an otherwise legal arrest illegal. The same applies to prosecutions.” (Judge Harms)
In other words regardless of the motives behind the case — political conspiracy included — if a case exists then the motive for bringing it becomes irrelevant. Yet everywhere I look the headlines are reading tapes will save Zuma. You’ve got me beat please explain why. A useful link for those interested in the tapes and their value is, as always, Professor Pierre de Vos.
As set out in this previous article there are basically three grounds upon which the NPA could consider dropping the charges:
1. After Zuma’s representations they consider the case unwinnable ; or
2. It is not in the public interest to proceed ; or
3. Zuma could not be given a fair trial as guaranteed in terms of the Constitution.
The tapes themselves are inadmissible in respect of the trial itself but may be handed in with the representation. HOWEVER, as we have seen above this will not assist Zuma in respect of his case but rather implicate others who should be charged with a whole smorgasbord of criminal acts if the information leaking out is correct. Moreover the obtaining of the tapes and handing over to individuals should be — I don’t say will be — of interest to the authorities. As should the failure to report the criminal acts, surrounding the obtaining of the tapes or conduct described therein, for what appears to be a considerable length of time.
The question is: Why sit on the tapes?
I can only come up with one answer failing full disclosure by the Zuma team.
The basis for dropping the charges is clear what is less so is the basis for tapping the phones of certain individuals. We need to know exactly what was done, to whom and why there was authority for doing so. Needless to say recording parties at this level comes under the heading of national security and in the event that they were unauthorised the most stringent measures must be taken to avoid a repeat thereof.
Accordingly let’s seek clarity on the NPA dropping the charges in terms of recognised grounds, or refusal thereof, as opposed to a full disclosure on the phone tapes, which needs to be thoroughly investigated.
Suppose the NPA drops the charges and suppose that it can be proved conclusively (near impossible) that the charges were droped on the basis of the tapes.
That can lead to only conclusion. The Zuma team’s assertion that this case was politically orchestrated is correct. As you correctly point out, there really is no rational legal reason for dropping the case.
Clearly, the Zuma team truly believe in the political interference theory of motivation for the existence of charges against him – regardless of his guilt or innocence.
Let’s watch the NPA’s next move.
If you look at the “body language” of the ANC (and not just Mr Zuma), then there is a clear expectation that the NPA will rule in favour of Mr Zuma. We are being told that the ANC “will respect” the decision of the NPA, AND SO MUST EVERYONE ELSE.
Considering that this is the last stage of the process that is not in the hands of the courts, this confidence is instructive.
As Prof de Vos has pointed out, we are seeing misrepresentation and then criticism of those who stand against or criticise the notion of dropping the charges. It would not be surprising for this to turn into anger, and then to subtle intimidation. From there it would be a small step to open intimidation.
As has already been pointed out, criticism of an unlawful act does not constitute a failure to respect the rule of law.
I ask again, is there anything that the Zuma cabal is NOT prepared to do in the process of attaining power, and then holding on to it?
If, for example, the NPA was to decide to proceed with the prosecution (possibly due to the fact that it can find no lawful means to withdraw the charges), would there be a sudden “popular” outcry demanding that a constitutional change be made to prevent the prosecution of a sitting head of state?
after all, judge nicholson– a progressive judge– was correct, and judge harms–a fairly old school & conservative judge– was unfortunately wrong.
indeed, there had been meddling, peddling, manipulation, abuse, massaging, interference, cronyism, power hungryness involved in this percecussion. tapes or no tapes, zuma’s case wasnt gonna be fair anyway. regardless of what charges are, we cannot ignore the executive influence on this matter. “you’ll always be my president”, a well known npa has been alleged to have said.
on the other side, there are lot of howling mouths outthere who only expect this percecussion to go ONLY in their way i.e zuma must be found guilty, if not he has to find himself so…regardless of what the law says. can that be called justice?
lastly, we shouldnt forget that it is the justice system that investigate, procecute, and lay a final judgement…so if people want to take a cheap shot at it, i suggest they smack the whole lot…they shouldnt only pick the far end of it (judgement) and pretend as if the other stages are immune from critism.
1. At least two senior Judges agree that there is a prima facie case of fraud and corruption against Mr. Zuma to be answered.
2. Those charges exist as a result of a prolonged investigation both here and abroad.
3. The fact that the charges exist on their own merits means that there is no grounds for dropping them.
4. IF THE ALLEGED TAPES EXIST and even if they demonstrate any improper action on the part of the former President, that does NOT affect the legitimacy of the charges for which sufficient evidence exists to justify a criminal trial.
5. Confusing these two issues appears to be the defense strategy in the case.
6. Before rendering an opinion, the NPA should subject the alleged TAPES to independent testing to establish whether they have been altered in any way. THIS IS STANDARD PROSECUTORIAL PROCEDURE. UNTIL THE AUTHENTICITY OF THE TAPES CAN BE DETERMINED, THERE IS NO WAY THE NPA CAN WITHDRAW ITS CHARGES.
Depending on how you want things to go, it is a very good/bad sign when the ANC start saying that it will ‘respect the decision’ and so must everyone else.
It is the way the party seeks to impart general validity to an outcome that serves its particular ends.
Many will reflect that things looked more promising when Malema was shouting they would kill for Zuma.
Then the NPA must still have been in with a chance.
The scenario presented is that the tapes come from illegal wiretapping of the president’s phone. But is the president’s phone calls not always taped to ensure that whatever he says is correctly captured in the event that there are confusion in future – e.g. to avoid international disputes etc.? In other words, it may be accepted/standard practice within the presidency that specific phone calls be recorded ito internal information management. If these recordings exist, maybe someone at the presidency leaked such a tape / made a copy for the Zuma team.
Yes, the tapes may indicate a political motive for the investigation. This should not impact on the substance of the NPA’s case. But an alternative may be that the tapes allege the fabrication/destruction of evidence during the investigation phase (don’t know what it may be), which will require the NPA to relook at the authenticiy of their evidence and/or lack of counter evidence etc. This is a much more serious matter ito political meddling as it would mean deliberate actions to secure a guilty verdict for Zuma (i.e. beyond any reasonable doubt).
I’m merely looking at alternative scenarios. This is all theory without any evidence backing the claims up.
@ siphiwo
You have a very loose interpretation of many things, but one seems automatic with you.
A call for prosecution of Zuma is a call to see him face justice, not a call for him to be subject to injustice, not a call for him to be found guilty. Guilt needs to be proven for justice to be served. He should have his day in court and thereafter we can call it one way or the other.
You are wishing perhaps for him to be free of prosecution on grounds that have been disqualified in his case’s appeal by the NPA to the Supreme Court. Until Zuma faces the court he will be assumed by a large portion of the SA population and much of world opinion to have avoided justice through political pressure and to be unwilling, if not unable, to stand up to the facts in court.
Everybody knows the NPA will drop the charges come Friday and Zuma will be clear to be president.
I am not sure what all the fuss was about – even convicted criminals like Winnie are allowed to be in parliament anyway.
South Africa is not projecting a positive image of itself or its leaders at all.
Traps, an interesting avenue not explored is what the various responses will be if the NPA decides to continue with their case as is, drop some of the charges, drop all of the charges against Zuma, or charge/investigate other people / organisations.
Here are some:
* If the NPA continues to prosecute, will the tapes become public (released by the Zuma team?)?
* Given their strategic planning capability, is the left busy mobilising communities to protest across the country in the event that the prosecution continues?
* Is the NIA monitoring of SA effective enough to detect such activities? Hopefully none of their operatives are involved?
* If charges are dropped, will Zuma sue the NPA for defamation / improper prosecution, as well as all the news media / cartoonists?
* If charges are dropped, who are the likely public scapegoats going to be?
* Will Thint still be prosecuted (for trying to bribe Zuma through Shaik), even if the charges against Zuma is dropped (i.e. the intention to bribe should be clearer to proof in their case)? * Or will their investment in /bribery of Zuma actually pay off and all charges against them be dropped?
* With the Scorpions disbanded, who will investigate other possible cases: Police investigations are much more politically influenced than the NPA?
Please add any other questions or possible scenario outcomes.
Traps,
You are recently purposefully failing to probe anything that won’t lead Zuma to be charged by selectively quoting from a single source. Professor Pierre de Vos is devorced from thinking out of the DA’s and other opposition parties’ talking points and paradigm. You do not consider Squires, Tshabalala’s and Nicholson’s judgements on on your references to square their views on the same matter with de Vos and Harms.
Why do you focus on how the tapes were obtained or their admissability, when the more pressing question is that are their authentic and their content true? When the Sunday Times obtained Manto’s medical records, the court of public opinion was only interested on wether their content was true.
You and Harms also concur that it is not important how the NPA trumped up the charges and collected evidence against Zuma. What is important to you is that he must face the charges. No do you question the 8 years that it has taken the NPA persecute Zuma. YET you question how were the tapes made and for how long have Zuma’s defence known about them. It does not perturb you at all the notion of what if the conspiracy is true. Was it not the onus on Zuma’s team to provide evidence of political conspiracy?
I am not a legal professor BUT is it not unconstitutional for the NPA to prosecute anybody WITH fear AND favour?
I agree completely with @Siobhan’s reasoning.
The Zuma camp has chosen to try to conflate, at least in the public’s mind, the possibilty of political skulduggery behind the case and the actual charges that Zuma would face if charged. Hoping thereby that if the skulduggery is proven then the public will be happy to see the charges against Zuma dropped, and, I am afraid, it will be the case for those who have been taken in by the conflation.
This is sad indeed because the real issue is whether, or not, some of the public money
[mis]spent on the arms deal was siphoned off through corruption into private individual’s pockets and we, the people, need a court of law to determine that for us. The hope of a functioning criminal justice system is one of the reasons why we pay taxes after all.
Well said Traps – and thanks for adding a voice of reason. All of us must demand full disclosure. The moral majority deserve it.
@ Traps
“In other words regardless of the motives behind the case — political conspiracy included — if a case exists then the motive for bringing it becomes irrelevant”.
I beg to disagree political meddling would prove the basis of the Jacob Zuma case weak and also prove abuse of power(if really T.Mbeki and McCarthy are involved).
Judge Harms(other judges) hoped like some South Africans for Jacob Zuma to have a case(this basis is inferred from the fact that JZ NEVER contested the non-existing of a case but rather the legitimacy of a charge).Therefore,the SCA’s judgment on this matter does NOT carry much weight!!The fact is,it can be overruled by the ConCourt if it ever goes there!The evidence before the NPA prior submissions of tapes was obtained through a criminal act(abuse of power),the tapes I guarantee you would prove this argument correct!!
Anyway,the SCA appeal by the NPA was the last time JZ went for trial related to the Arms Deal…I said before we wasted too much resources pursuing JZ.There are far worse criminals out there!
Sipihwo
When did Nicholson go from an “apartheid judge” (because he is white) to a “progressive judge”? When you thought he ruled for Zuma? He did not ,you know. I believe, and many like me, that he did a judgement he knew would be overthrown on appeal to pay Zuma back in his own coin for his continual intimidation of the judiciary.
Traps
Let us know something about the option of “a private prosecution”? We all want to know.
Thanks, Michael, for that extract from the judgement. I am tired of hearing here in Malawi our ex-President claim that all of his current legal problems are politically motivated. Yet, when he was in power, no one DARE ask how he became so wealthy so quickly. No organ of state DARE enquire or start proceedings. I fear that time is running out for South Africa and its ‘independant’ organisations.
Traps
A private prosecution could be funded by an Internet Campaign – even internationally.
Is there any grounds to go to an international court? After all a sitting president was deposed?
Its strange how the enemies of the ANC raise the possible illegality of obtaining the compromising tapes as reason to discount them, and yet do not want to employ the same standard when dealing with how the NPA instituted and persued its case against Zuma. It is to stretch our intellectual credulity to expect us to believe that the justice system in any part of the world, particularly in South Africa, transcends political posturing. The justice system is a product of history and administered by people who hold certain political and economic views. Hands off Xamalala!
MT – Thanks for keeping things clear. I wish headline writers would read your column and keep everyone clear on the pertinent facts and not buy the “smoke ‘n mirrors”.
@Siphiwo – Read what what Traps wrote, please. And read what Siobhan has written above. Then read what you wrote. And blush.
On the basis of the eveidnce used to convict Shabir Shaik, Zuma should have been convicted by now.
The NPA has been going halfway around the world to get ‘evidence’ against Zuma. Why don’t they just refer to the Shabir Shaik trial?
Does anyone know what would you be charged with if there was evidence that you took part in a political conspiracy? Subverting the course of justice? I’ve also asked this question on my blog:
http://grubstreet.co.za/2009/04/01/do-the-right-thing-for-south-africa/
@Lyndall Beddy on April 1st, 2009 at 3:19 am:
Let us know something about the option of “a private prosecution”? We all want to know.
Crim. Proc. Act 51 of 1977
7. Private prosecution on certificate nolle prosequi.
(1) In any case in which an attorney-general declines to prosecute for an alleged offence—
(a) any private person who proves some substantial and peculiar interest in the issue of the trial arising out of some injury which he individually suffered in consequence of the commission of the said offence;
(b) a husband, if the said offence was committed in respect of his wife;
(c) the wife or child or, if there is no wife or child, any of the next of kin of any deceased person, if the death of such person is alleged to have been caused by the said offence; or
(d) the legal guardian or curator of a minor or lunatic, if the said offence was committed against his ward,
may, subject to the provisions of section 9, either in person or by a legal representative, institute and conduct a prosecution in respect of such offence in any court competent to try that offence.
(2) (a) No private prosecutor under this section shall obtain the process of any court for summoning any person to answer any charge unless such private prosecutor produces to the officer authorized by law to issue such process a certificate signed by the attorney-general that he has seen the statements or
Continued . . .
. . . that he has seen the statements or affidavits on which the charge is based and that he declines to prosecute at the instance of the State
(b) The attorney-general shall, in any case in which he declines to prosecute, at the request of the person intending to prosecute, grant the certificate referred to in paragraph (a).
(c) A certificate issued under this subsection shall lapse unless proceedings in respect of the offence in question are instituted by the issue of the process referred to in paragraph (a) within three months of the date of the certificate.
(d) The provisions of paragraph (c) shall apply also with reference to a certificate granted before the commencement of this Act under the provisions of any law repealed by this Act, and the date of such certificate shall, for the purposes of this paragraph, be deemed to be the date of commencement of this Act.
8. Private prosecution under statutory right.
(1) Any body upon which or person upon whom the right to prosecute in respect of any offence is expressly conferred by law, may institute and conduct a prosecution in respect of such offence in any court competent to try that offence.
@ Rory Short
Thank you. Your post is excellent and cogently argued.
@Traps:
Please address the issue of:
a) The admissability of tapes that have been illegally obtained;
b) The legality of accepting the tapes on ‘face value’ without verifying their authenticity.
c) The involvement of world-class experts in audio-analysis to ascertain IF the tapes are authentic or fabricated or have been ‘edited’ in any way. (The Indian space programme, Euro-space and NASA all have state of the art equipment and the world’s top experts in the field).
d) Lyndall’s point re: private prosecution like that suggested by the DA in case the NPA (which we all expect it will).
Mukiwa
Never mind the “large portion of SA population” wondering if Zuma is indeed corrupt or not,i’ve long been having a question mark over Zuma after what came out at Shaik’s trial.Whenever i see him on TV or Newspapers,i always ask myself if he did take bribes,if he did advanced Shaik’s businesses,if his beautiful thatched house in poverty-stricken Nkandla was indeed paid by Thint or Vivian Reddy,if his children were schooled by shaik or dad himself…all this questions wont go away until a Judge(Court or Commission of enquiry makes final pronouncement on charges put him.I wonder if i’ll end up with a migrain.lol
Mwenebobo
Time ran out long ago for our so-called independant organs of state when the mighty ANC deployed what is laughingly known as disciplined-brave-loyal-dedicated-cadres of the movement to head those organs instead of neutral non-politically affiliated people.Look at the consequences now.Sad
Please keep us posted about Bakili Muluzi’s shenanigans that i find hilarious.Whilst he was president,he sign(on behalf of malawi)African Union’s declaration/resolution of two-term presidency and now that he’s in trouble he turns around and want it declared unconstitututional
My Son
I dont know about “DA supporters” but the tapes worry me. I want to know
1. Dis a judge give an order for the bugging?
2. Was the judge Hlophe?
First some correction on Pierre De Vos’ reading of RICA…
1. The permission of the parties being recorded requirement is only valid if this is in reference to a deployed device-even then only one of the parties need be ‘told’…
2. Interception MUST AT ALL TIMES be preceded by authority from a judge. Only in the case of emergencies can this provision be circumvented-although there’s a requirement to retrospectively seek permission, NO LATER THAN 48 hrs after the recording. Any form of interception of SAn citizens that falls outside this ambit is ILLEGAL!
This said, i dont want to speculate about said tapes and content, i’m in no position to do so.
I do want to deal with the conspiracy issue and the emerging narrative that there’s no need to prove it because the nature of conspiracies is that they cant be proven etc, etc. I think its absolutely crucial its proven, the bonafides of the judiciary and our security sector hinges on this. What most dont realise is that it creates a precedent in both party and state l’ship transitions. Politics by nature is dirty business, add to this broth, conspiracy politics with gravitas to overturn legal judgements without being tested and you’re well within coup d’état territory. Its Newton’s 3rd law of motion…
It escapes me why people like Traps expect Zuma to contest the veracity of the charges against when he’s not suppose to win.Traps and his fellow travellers have subtly declared that anything other than the conviction of Zuma will never prove the independence of the judiciary. To them independence of the judiciary = conviction of Jacob Zuma.
Traps
I have just listened to the news and am appalled to hear the ANC saying the taxpayer must foot all Zuma’s bills and blaming the NPA for wasting taxpayers’ money.
That is NOT the law. We were told in the beginning that Zuma would pay the costs if he lost. He lost ALL the appeals – which means he must pay both sides costs for all of those cases. And if he can’t pay, the ANC can use some of China’s donations to their coffers to pay for him.
I have heard Pierre De Vos and other experts advising on the rights of a private prosecution of Zuma. One said that possibly any taxpayer could show an interest in bringing a case.
Well as far as I see it, the case for Zuma and not taxpayers having to pay the costs of his appeals, is even more straightforward.
Please advise.
We are all wondering why the NPA is taking so long.
But why avoid the obvious. If they have been handed evidence of police involvement in conspiracy, maybe involving Selebi, maybe many more people as well – who will investigate it?
Which is why we had the Scorpions!
If the scant occurence of the Sunday Times being truthful is to start today, we might be experiencing SA’s own beginnings of McCarthyism. The end of innocence?
I’ve said elsewhere here, that if JZ was a victim of a conspiracy let it be outed & let those responsible answer-with the proviso, the conspiracy be investigated, tested & validated. I’ve also said, Lindiwe Sisulu et al do the ANC a disservice by dragging it into this. If Mondli’s editorial team are on the money, JZ might have been hoodwinked into a ‘deal’ that replaced the charges hanging over his head with a conspiracy cloud, maybe more dangerous. At a party level, giving birth to another ‘disgruntled other’ intent on shifting the centre of gravity. At a state level, this bunch has set the ANC on a collision course with the judiciary & the security agencies, brilliant!
Unbelievable…
Where to from here?
They have us all by the balls it would appear, the rotten inner circle, and we have no recourse. Mpshameful, corrupt, indefensible. It’s Chris Nicholson round 2, but without the supreme court to slap them about for it!
Can I say fuck here? I want to say that at the end of every sentence today. Fuck.
I want my money back. Why must I fund Jacob Zuma’s trials and tribulations from my income tax. Is he not a ‘normal citizen’, just like me? I will be making a deduction on my next SARS return marked: “Money borrowed from me by the government to pay Zuma’s legal fees”. Let them charge me for it! I will call it a conspiracy against me, get the government to pay me legal fees, then rally to become the next president. What a joke this man has made of our country…
Imagine if every South African who had to cough up for Zuma’s legal fees refused to pay tax until we were reimbursed for our losses? Makes you think…
Since Zuma LOST all his cases AND all his appeals – the taxpayers should not pay.
As far as I am concerned the ANC should pay.