Tuesday, January 13, 2009

South African News Bulletin: ANC President Jacob Zuma Recharged in Corruption Case; Former Leader Thabo Mbeki Vindicated in SCA Ruling

BLOEMFONTEIN 12 January 2009 Sapa


High court Judge Chris Nicholson took his eye off the ball and "red-carded" high-profile leaders when he implied political meddling in the Jacob Zuma graft case, the Supreme Court of Appeal (SCA) said on Monday.

In a unanimous judgment, five judges of the SCA bench ruled that the corruption and fraud charges against Zuma must stand - and gave Nicholson a tongue-lashing for his judgment, described as "incomprehensible".

"'Political meddling' was not an issue that had to be determined," said acting Deputy Judge President Louis Harms, while handing down judgment.

"Nevertheless, a substantial part of his judgment dealt with this question; and in the course of this discussion he changed the rules of the game, took his eyes off the ball and red-carded not only players but also spectators."

However, the SCA ruled that it was too late to strike Nicholson's "political meddling" statements, as the "damage has been done".

"It makes no sense to strike them out at this late stage of the proceedings. The damage has been done. This does not mean that the order of the court below should stand," said Harms.

"Most of the allegations were not only irrelevant but they were gratuitous and based on suspicion and not on fact. The excuse for including them was unconvincing especially in the light of the disavowal of any intention to rely on them.

"The prejudice to the NDPP was manifest. Instead of having a short and simple case, the matter not only ballooned but burst in the faces of many. There may well be reason to hold that many of the allegations were vexatious and scandalous, but once again, it is not necessary to do so for present purposes."

The SCA was handing down judgment in an appeal brought by the
National Director of Public Prosecutions (NDPP) against Nicholson's ruling in the Pietermaritzburg High Court on September 12.

Nicholson made two significant findings. The first was that the NDPP should have offered Zuma the opportunity to make representations before it decided to re-charge him in December 2007.

This finding by Nicholson effectively halted Zuma's prosecution but has now been overturned by the SCA, which means that Zuma is still facing charges of fraud, corruption, racketeering, and money laundering.

The second part of Nicholson's judgment was the finding that
implicated political meddling in the decision to re-charge Zuma, a statement which ultimately led to the sacking of president Thabo Mbeki.

Mbeki also applied to the SCA to have this struck out, but his application was dismissed.

The judges of the SCA did, however, state that the findings made against Mbeki were out of order.

"The 'strategy' involving Dr [Penuell] Maduna [former justice
minister], Mr Mbeki and all the other members of cabinet as well as the casual connection between the [former chief prosecutor Bulelani] 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," said Harms.

"It is important to stress that Mr Zuma did not allege that this decision was politically motivated; he did not say that it was unjustified; and he did not allege that Dr Maduna had acted improperly by being present at the press conference [when Ngcuka announced a prima facie case against Zuma].

"In spite of this, Judge Nicholson saw it as his duty to determine whether the decision was made from fear or favour."

Harms later added: "The court failed to have regard to another principle, namely that the more serious the allegation or its consequences, the stronger must be the evidence before a court will find the allegation established."

The SCA also criticised Nicholson's criticism of Mbeki's decision to dismiss Zuma as deputy president after his financial adviser Schabir Shaik was convicted on fraud in 2005.

"The propriety and legitimacy of Mr Mbeki's decisions were not issues in the case and he was never called upon to justify them. These matters are also not matters of law - they relate purely to political questions," said Harms.

He said Nicholson failed in his duties as a judge in the September 2008 ruling.

"Judges as members of civil society are entitled to hold views about issues of the day and they may express their views provided they do not compromise their judicial office. But they are not entitled to inject their personal views into judgments or express their political preferences...

"Even if, in the words of the learned judge, the judiciary forms a 'secular priesthood' this does not mean that it is entitled to pontificate or be judgmental especially about those who have not been called upon to defend themselves," said Harms.

Also, several of Nicholson's findings were based on newspaper
articles, which were "no more than inadmissible speculation by a journalist", said Harms.

"The trial judge... failed to comply with basic rules of procedure. Judgment by ambush is not permitted."

Harms emphasised that the case before the SCA did not deal with Zuma's guilt or innocence, but dealt with legal technicalities.

Harms was referring to the NDPP's appeal against Nicholson's finding that the Constitution offers Zuma the right to make representations before being re-charged.

"[Zuma's lawyer] Mr Kemp J Kemp's reliance on the equal protection clause of the Bill of Rights is, accordingly, misplaced," said Harms.

"I therefore conclude that Section 179(5)(d) does not apply to a reconsideration by the NDPP of his own earlier decisions."

Harms also said that Ngcuka, the first chief prosecutor to raise the possibility of charging Zuma with corruption, made it "clear that if circumstances were to change in the sense that more or better evidence became available, the decision not to prosecute would be revisited and reconsidered.

"This means that the Ngcuka decision was not intended to be final; it depended on the then available evidence; and it was limited to the mirror images of the Shaik corruption counts," said Harms.

Zuma judgment: Mbeki's full statement

Following careful consideration of Monday's Judgement of the Supreme Court of Appeal (SCA) in the matter between the National Director of Public Prosecutions and African National Congress President, Mr Jacob Zuma, former President Thabo Mbeki wishes to make the following observations:

1. I welcome and accept the determinations made by the SCA that Judge Nicholson had no facts before him to suggest that I and the Cabinet interfered with the National Prosecuting Authority (NPA) in its consideration of matters relating to Mr Jacob Zuma.

2. In my Address to the Nation on September 21, 2008, I said: "I would like to restate the position of Cabinet on the inferences made by the Honourable Judge Chris Nicholson that the President and Cabinet have interfered in the work of the National Prosecuting Authority. Again I would like to state this categorically that we have never done this...In this context it is most unfortunate that gratuitous suggestions have been made seeking to impugn the integrity of those of us who have been privileged to serve in our country's National Executive."

3. I agree with the SCA where it says Judge Nicholson made "gratuitous findings against persons who were not called upon to defend themselves...(failed) to distinguish between allegation, fact and suspicion, and ...(transgressed) the proper boundaries between judicial, executive and legislative functions."

4. Accordingly, I also agree with the SCA where it says, "Most of the allegations (of political interference) were not only irrelevant but they were gratuitous and based on suspicion and not on fact."

5. I also agree with the SCA where it says, "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."

6. Like the SCA, we had found the manner by which Judge Nicholson made negative findings against the President and the Cabinet "incomprehensible".

7. We intervened in the NPA appeal to the SCA because we wanted to correct the unfair and unwarranted inferences made by Judge Nicholson against us, and as the SCA said, we "had ample reason to be upset by the reasons in the judgement which cast aspersions on (us) without regard to (our) basic rights to be treated fairly." The SCA ruling has vindicated us.

8. It seems to me that the unacceptable practice of propagation of deliberate falsehoods to attain various objectives is becoming entrenched in our country. I am pleased that the SCA has provided firm leadership in this regard by insisting that nobody's integrity should be impugned on the basis of untested allegations.

9. All of us as leaders and citizens have the responsibility critically to reflect on this practice in order to avoid the entrenchment of a culture which may eventually corrupt our society.

Published on the Web by IOL on 2009-01-13 15:24:46

Top guns to save Zuma

By Murray Williams

The ANC is poised to launch its own legal rescue bid to ensure party president Jacob Zuma never goes on trial to face graft charges.

The ANC's decision to step more actively into the fray comes amid Monday's sensational Supreme Court of Appeal judgment that overturned Judge Chris Nicholson's ruling in favour of the ANC president.

While the legal fraternity weighed up the choices open to Zuma in the wake of the ruling, the ANC's Mathews Phosa confirmed on Tuesday morning that it was ready to launch a legal bid to have a stay of prosecution granted.

And a senior ANC source told the Cape Argus on Tuesday: "The ANC feels that this case is increasingly undermining our own constitutional rights. It constantly tries to impact on who is our president, and who is our presidential candidate for the national elections.

"ANC lawyers have been instructed to actively and directly to become involved."

This means that the NPA could from now have to fend off dual appeals by both Zuma and the ANC.

Both Zuma and the ANC's NEC have secured the services of one the country's toughest anti-arms deal figures, corruption-busting Judge Willem Heath, to help keep Zuma out of the dock. Heath has been working quietly with Zuma for the past four years.

The ANC is also believed to be listening particularly closely to US-educated Paul Ngobeni, the deputy registrar of legal services at UCT, who insists it would be impossible for Zuma to have a fair trial.

Speaking exclusively to the Cape Argus, Heath denied that he had performed a gamekeeper-turned-poacher switch.

"I have been hired to assist the NEC in understanding all the issues pertaining to the case against Mr Zuma, to advise them on what matters they should debate with Mr Zuma," Heath explained.

He stressed he was not part of Zuma's defence team, but served to advise both Zuma and the NEC on the arms deal's complexities.

Heath acknowledged that he was ideally placed to offer expert advice because of his initial work on the arms deal. He was later ordered off the case and his Heath Special Investigating Unit was controversially shut down by then-president Thabo Mbeki. This was only after Heath had received voluminous representations on the arms deal from key sources, and had dealt extensively with three of the state's key agencies - the NPA, the Auditor-General and the Public Protector.

Heath said he had studied closely the 98-page indictment against Zuma on corruption, fraud, racketeering and tax evasion charges and said particular notice should be paid to Judge Louis Harms's mention yesterday that Zuma should not automatically be seen to be guilty after Schabir Shaik's conviction - because their "intentions may have been different".

"If Judge Squires had had the benefit of the defence that Mr Zuma could have offered, he might well have reached different conclusions," Heath argued.

This article was originally published on page 1 of The Cape Argus on January 13, 2009

Published on the Web by IOL on 2009-01-13 11:54:00

Zuma judgement casts shadow of uncertainty

By Christelle Terreblanche and Moshoeshoe Monare

South Africa is likely to have a president facing criminal charges.

The ANC insisted on Monday that Jacob Zuma remains their presidential candidate, following a Supreme Court of Appeal decision that technically exposes the ruling party leader to further prosecution.

Former president Thabo Mbeki, who was fired by the ANC on the basis of a ruling by High Court Judge Chris Nicholson, which was criticised by Supreme Court of Appeal Deputy Judge President Louis Harms on Monday, said he would study the judgment and "determine whether to comment or not".

But radical alliance leaders privately boast that any criminal case against Zuma will be "quashed" after the elections.

"You cannot have a president of the Republic hauled before the courts like a common criminal. We must respect the office of the president," said an alliance leader.

He could not say whether they were considering the French model, which bars prosecution of a sitting president.

On the other hand, the radicals had made sure that the so-called proponents of a third-way option - those who prefer neither Zuma nor Mbeki - do not prevail.

Businessman and one-time presidential aspirant Tokyo Sexwale was apparently quizzed about the revival of a third-way "movement".

Another alliance leader anonymously said "This is why Tokyo appeared with Zuma last month, to show that he still support us".

But an insider close to Sexwale on Monday said the rumour was caused by those threatened by the businessman's closeness to Zuma. "He is completely behind Zuma."

Even the moderates, who initially whispered that Zuma should step aside in favour of President Kgalema Motlanthe in the event of an unfavourable ruling, were warned that the ANC's national conference decision was final.

The ruling party on Monday said: "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."

This article was originally published on page 3 of The Star on January 13, 2009

Published on the Web by IOL on 2009-01-13 05:19:00

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