Sometimes when I read a news report I have to check the date to see whether it is not perhaps April 1 and whether the report is not perhaps an April Fools joke. So it was when I read that a Pietermaritzburg magistrate, a former member of the Scorpions, has launched a legal bid to block state prosecutor Billy Downer from taking part in the case against ANC President Jacob Zuma.
According to IOL, in papers lodged in the Pietermaritzburg High Court, Magistrate Ashin Singh has applied to be admitted as an amicus curiae (friend of the court) in the Zuma case. In his papers he claims: “Unless one of the members of the team of prosecuting counsel is removed from that team, the accused will not be afforded a fair trial. The member of the team of the prosecuting counsel that I refer to is Mr WJ (Billy) Downer SC.” He claimed that Downer – a prosecutor in the Zuma matter – had “scant regard for honesty and integrity, and that he will wilfully mislead a court in breach of his legal obligation as a prosecutor”.
Now I have no knowledge of Mr Singh’s case or whether Billy Downer acted in an inappropriate way in this case, but as some readers of this Blog have already pointed out, it is highly irregular for a Magistrate to get involved in a criminal case over which he or she is not presiding.
Apart from the rules governing magistrates with which I am not intimately familiar, there is a broader principle at stake here that was addressed by the Constitutional Court in the case challenging the constitutionality of the Heath Special Investigative Unit. In that case the Constitutional Court made clear that the seperation of powers requires judicial officers not to get involved in actions that may drag them into the political arena.
The separation of powers doctrine requires judicial officers to stick to adjudicating cases and not to act in any other capacity not associated with their office. This is because the legitimacy of our courts really depends on this. The same principle was applied by the judges who found that the appointment of Nathan Erasmus as the head of a Commission of Enquiry by Ebrahim Rasool was unlawful.
One may well argue that judicial officers are also citizens and that they have a right and a duty to assist courts in impoartnt matters like this. But there are other – less problematic ways – of doing so. Mr Singh could have informed the Zuma camp of his gripes and could have been called as a witness.
He could also have complained to the National Director of Public Prosecutions and could have asked for Mr Downer to be dismissed. Instead, he is trying to insert himself as an amicus curiae party to one if not the most controversial criminal trial in the history of South Africa. This is so obviously unwise and beyond the role of a responsible judicial officer that one is tempted to speculate about Mr Singhs motives. But I would not want to exarcerbate the already problematic situation so will refrain from doing so.
I would think however, that Mr Singh has acted in a manner that may well be froned upon by the Magistrates Commission and would hope that this Commission would look into his conduct and would make an appropriate finding if they agree that this kind of action is highly inappropriate for any judicial officer.
Singh for Deputy Cons Court Justice, or perhaps Justice Minister?
I think we are going to see more weird and wonderful characters like this emerge from the woodwork as the realisation grows that we may be entering a lawless free for all patronage zone under the Blade, Vavi, Phosa, Malema axis of scumbags.
We stand at Thermopolae and the persians shall not pass!!
At long last Prof you agree that Zuma’s case is “the most controversial criminal trial in the history of South Africa.” I don’t know why you regard it as being controversial but I know that you believe that he is incapable of running the country and therefore he must be found guilty in a court of law. If Zuma goes to court and it takes 10 to 15 years for the case to be concluded, is that justice? Can a speedy trial be guaranteed for Zuma? How long is speedy? It took the NPA 7 years to investigate Zuma. They have so many files and folders it will take them years to show them as evidence in court. Ngcuka said the case is not winnable and somehow we feel there is extra evidence that will lead to a conviction. Some people are unhappy with the happenings around this case and it hasn’t even gone to court. What will happen if 15 years down the line Zuma is acquitted? Would the so called “political conspiracy” not have worked? Do you think Zuma’s followers will take that lying down or are we so interested in destroying the man that we would risk destroying the country? Do we so despise the man that the interests of the country are not important? Do we really feel that this case is in the public interest? What public is that?
Thomas – surely the only place to resolve the whole Zuma matter one way or another is in court, regardless of what has happened to date. It is certainly not in the public interest for politicians to decide whether or not this matter now goes to court.
The politicians who are telling us that charges should be dropped because of potential violence are the same ones who would instigate and marshall that violence. Do we descend to warlord governance, or try maintain our constitutional democracy?
PS – I gather that, with the new evidence now allowable, the case will be far easier to try, and I cannot see the prosecution needing much more than a month or two – the defence will no doubt drag the matter on endlessly per their Stalingrad house by house strategy.
Peter: If you say the case is guaranteed to be finished in two months I will say it’s a speedy trial, but we where promised the same for the Ginwala commission etc. How long will the Authur Brown Case take? Don’t they have evidence there? Has that taken two months maybe you know better? The waterkloof 4s committed their crime in 2001. The legal process was finalised this year. Or sorry they are appealing to the constitutional court.
So you argue that it is better for a civil war in order to try maintain our constitutional democracy.
I say again the case will take up to15 years, if found guilty even more as you will recall in this country the accused has the right to appeal.
I observe from a distance what is happening in this matter. The magistrate is certainly out of line. But the broad strategy that “Friends of Zuma” have taken to go to court and assist him is going to be disastrous. Once you enter the court arena, cogent legal argument is required to push your cause. The Malemas, Vavis, will just be in the public gallery with limited space. In the political arena, there are no such demands.
How ironic that “Friends of Zuma” attack courts and now want to become “Friends of the Court”.
Samaita: Is the magistrate a “Friends of Zuma”
Did you see the Star, Thomas? The magistrate is a friend of Zuma, indeed!
Surely the case should be over by the time we get to vote.
As I have said under the Zille/Zilly blog, this so-called magistrate is a total ‘nitwit’. If indeed he is a ‘Friend of Zuma’, then surely he cannot be a “Friend of the Court’? Oh, and Peter, I don’t know what gave you the idea, but I am definitely not lindelani – just see a few blogs back how bitterly we thrashed it out with each other, my not believing he is a lawyer and all, and hoping he never appears in my court.
Thomas, if JZ’s team lets go of all their nonsense, surely the case can be over within two months (or even a shorter period), but it depends on the way he and his team would be conducting their case. I bet they are going to do what they can to drag the case out very long, and in the process hope they will be able to exclude some evidence, or that the witnesses will die or recant or something, because 15 years in prison is a long time. If they start with the trial, and keep cross-examination to what is relevant, the case can be over within a month. But, after the judgment on the last application, JZ and his team are already prepared to appeal if the judgment goes against them (which I’m sure it will), and after that, they will be bringing yet another frivolous application, namely to have the prosecution stayed permanently. And if that goes against them, they will appeal, and when that goes against them, they will surely think of yet another application. Perhaps by then, he is the new President of this country and he can apply to a court (perhaps the CC) to recognize a new defence in SA, namely: “The King (or rather the President), like Fieldmarshall Idi Amin Dada, can do no wrong.”
@Anonymouse
Sjoe, wat ‘n donker prentjie!
I’m new on this blog, not a jurist just a blogger. Try to identify you proff. bloggers. You said : ….hoping he never appears in my court. Does that mean that you are on the bench?
Thomas // Sep 5, 2008 at 8:44 am
……………………………………………………..
Someone once asked thess questions on this blog;
Does the ANC not have another person who can be the President instead of Zuma. Why is there a blind following of one man? So far I have not seen an answer to this mindbogging questions…
Koos – Yes, in one of the lower courts that are not yet so (totally?) independent as the High Courts. That is why I use a psuedonymn. … Maar, ‘n donker prentjie inderdaad – ons kry dit daagliks dat mense verhore onnodiglik uitrek omdat hulle nie kans sien vir 15 jaar agter tralies nie (sou jy nie?), en soms word die belang van geregtigheid nie gedien nie omdat somige beskuldigdes en regsgeleerdes in die nuwe konstitusionele bestel met ‘moord’ wegkom.
LATEST…Magistrate withdraws….the details of his fights with the Scorpions tell a story…
Thomas, he may not be a friend of JZ.
Magistrate withdraws Zuma bid
Sapa Published:Sep 05, 2008
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A Pietermaritzburg magistrate, formerly a member of the Scorpions, has withdrawn his bid to block state prosecutor Billy Downer from taking part in the case against ANC president Jacob Zuma.
Magistrate’s bid to block Zuma prosecutor
Zuma fans try force their way into court
Magistrate Ashin Singh, who had yesterday applied to be admitted as an amicus curiae (friend of the court) in the Zuma case, withdrew his application today.
In his papers that he lodged with the court yesterday, he claims: “Unless one of the members of the team of prosecuting counsel is removed from that team, the accused will not be afforded a fair trial. The member of the team of the prosecuting counsel that I refer to is Mr WJ (Billy) Downer SC.”
Singh said in his papers that he wishes to “lead evidence in limine in the matter of the question of whether the Court should not order that Adv WJ Downer SC is interdicted from taking any further part in the criminal trial of State v Zuma and Two Others.”
He withdrew the application as the State filed its notice to oppose it.
The legal battle between Singh and the Scorpions dates back to 1999 when Singh was seconded to the Investigating Directorate for Organised Crime and Public Safety in KwaZulu-Natal. The directorate, headed by Chris MacAdam, later formed part of the Scorpions.
Singh was subsequently expelled, arrested, charged and prosecuted on 12 counts of defeating or obstructing the course of justice, unauthorised disclosure of information, making a false statement under oath and contravening sections of the Protection of Information Act and the Interception and Monitoring Prohibition Act.
He won a permanent stay of prosecution when the trial magistrate ruled in 2003 that evidence against him had been obtained illegally.
Singh then launched a private prosecution against former national director of public prosecutions Bulelani Ngcuka, KZN Scorpions head Clifford Marion and other senior officials of the National Prosecuting Authority, including Billy Downer – who prosecuted Schabir Shaik.
On August 4, 2006, Acting Judge Nigel Hollis dismissed Singh’s application, saying in a reserved judgment that Singh had failed to satisfy the necessary legal requirements for launching such a prosecution.
In a case that is currently before the Pietermaritzburg High Court, Singh is claiming R2.87 million from the minister of justice and constitutional development.
His claim is made up of R2.5 million for insult and R370,000 costs to defend himself from prosecution in relation to his being arrested and charged.
“the most controversial criminal trial in the history of South Africa.” Finaly prof you agree to what we’ve been saying all these years. That this case is most controversial. I submitt that it is not moraly right to continue prosetuting Zuma in such a very controversial legal way. I here submitt that Zuma’s case should be dropped.
Amandla!!!!
Wow what a measure of justice: If the case is controversial (very wide term indeed, but some seem to make much of it) then it should be dropped.
T and Thomas seem to see what they want to see in a single word of wide possible application.
What friends of JZ still are not able to answer is whether Zuma should go to jail if he is guilty. It’s never answered with yes or no, because then the next logical step would not be pleasurable for them. No instead it is answered by how his rights were violated or that he is innocent, not answering the question.
How can we have a logical debate if the mere possibility of him being guilty and of being prosecuted for that guilt (if true), is completely off the table?
T, Zuma is innocent. They must let him explain his case in court man. Otherwise people will just keep on suspecting false things!
Mouse – there was a comment in an earlier thread that sounded a lot more like lindelani than you?
Driving today I again had to endure this ongoing clarion call that Zuma’s case must be dropped – because it was politically motivated and put together, it must be dealt with politically (whatever this actually means) I have heard this drivell parroted by any number of “new” ANC mouthpieces over the last few days, today was some women’s league spokesperson. Justice Tshabalala was also interviewed and very slowly explained that judges need to weigh the facts against the law, and cannot decide cases based on the decibels of the toyi toyi’ing going on outside the court.
Snuki also seems to have flipped neatly into Zuma mode, and suddenly the news is filled with this drop the case madness – today’s demo had 500 poeple, but was nonetheless the first item. I also see things like Blade Nzimande getting invited to discussions on all sorts of matters with no justification whatsoever – I mean, the SACP would get less votes than the Soccer Party in this country, why must their leader be given so much airtime? The SABC is showing some worrying tendencies…….
However, I believe that our Judiciary and state is going to stand firm and Zuma will stand trial. I also believe that Zuma will be able to drag his trial easily beyond the next election date, but that the ANC will suffer badly at the polls and will be unable to enact the legislation they need to dodge his prosecution (the Italian Berlesconi option). Best case is that the evidence that emerges in the trial is so damming that Zuma will step down and an able replacement will be appointed. I would be interested in the future expected scenarios from the legal eagles on this forum – altho even a day can be a long time in politics….
Peter – I think the pseudo in the earlier post (that sounded like lindelani) was spelt anonymous (without the -e!). Lindelani has a problem with his name being published on ‘Google’, and therefore tries some other identities from time to time. Once, he even used mine exactly. Anyway. I agree with you in all respects. On the following remark, “today was some women’s league spokesperson”, just the following: You know, the reason why so many women are after him (and supporting him) since the rape saga, is because he is “Mthontho-we-Siswe” (pun intended).
Yes Thomas, the accused has a right to appeal. Also the Constitutional prohibition on a person with a sentence in excess of 1 year not being able to become a member of the NA, from which body of people the President is selected, does not kick in if the conviction or sentence is under appeal. So Zuma could be convicted and sentenced and still elected President, from where he surely would be able to grant himself a Presidential Pardon. Or am I missing something?