Carl Niehaus, spin-doctor for the ANC who appropariately studied to be a dominee (seeing that Jacob Zuma has said the ANC will rule South Africa until Jesus comes back), has an interesting piece in Business Day, arguing that Jacob Zuma cannot get a fair trial because of the long delays. Section 35(3)(d) of our Constitution states that everyone has a right to a fair trial which includes the right “to have their trial begin and conclude without unreasonable delay”.
In essence he is arguing that the NPA started its investigation of Mr Zuma in 2001, but now we are in 2009 and yet Mr. Zuma has not had his day in court. Eight years have gone by since Mr. Zuma was first investigated and he could not possibly get a fair trial after all this time. Those people who argue these delays are all Mr. Zuma’s fault or that new charges were added only in 2007 and that there was therefore no unreasonable delay are “patently incorrect”, says Mr. Niehaus.
Mr. Niehaus has obviously been talking to some lawyers – which is a good thing - so he is not trying to regurgitate the argument that Mr. Zuma cannot get a fair trial because of the “trial by media”. That argument would never have worked simply because the “trial by media” argument fails to take account of the fact that much of this “trial by media” is based on facts, proven in a court of law. All these terrible things being reported about Mr. Zuma came out during the trial of Schabir Shaik – who is spending some quality time in jail for bribing Mr. Zuma and soliciting a bribe on his behalf.
But there is a legal argument to be made that Mr. Zuma would not be able to get a fair trial because of all the delays, and like the good spin doctor that he is, Mr. Niehaus has opportunistically latched onto this far more complicated but real legal issue to try and argue that his boss should never get his day in court and that it would not be fair to his boss to have to go to court to clear his name. (Obviously, this would mean we will be stuck with a President with a very dark ethical cloud hanging over his head, but the ANC seems to think the voters would not mind this.)
In Mr. Niehaus’ version of events, the state really blew the case when Bulelani Ngcuka decided not to prosecute Zuma. This led to the very long delays that will make any trial now unfair. Will such an argument work in court?
To help us decide this, we need to turn to the 1997 Constitutional Court judgment in Sanderson v Attorney General, Eastern Cape, which suggests that Mr. Niehaus might have a point, albeit not a strong one. The case makes for instersting reading, not least because it was penned by Johan Kriegler, the man who launched a scathing attack on Judge President John Hlophe – another person with questionable morals.
On the one hand, Mr. Niehaus might not be happy to hear that the Constitutional Court made clear in the Sanderson case that even where severe prejudice may flow from charging an accused, the remedy of a permanent stay of prosecution should only be considered as a last resort. Such a remedy, the CC said:
is radical, both philosophically and socio-politically. Barring the prosecution before the trial begins and consequently without any opportunity to ascertain the real effect of the delay on the outcome of the case is far-reaching. Indeed it prevents the prosecution from presenting society’s complaint against an alleged transgressor of society’s rules of conduct. That will seldom be warranted in the absence of significant prejudice to the accused.
We all benefit by our belonging to a society with a structured legal system; a system which requires the prosecution to prove its case in a public forum. We also have to be prepared to pay a price for our membership of such a society, and accept that a criminal justice system such as ours inevitably imposes burdens on the accused. But we have to acknowledge that these burdens are profoundly troubling and incidental.
In my reading, it will not be sufficient for Mr. Zuma’s lawyer to show that he has suffered emotional and political harm because of teh delays or that the case has been dragging on for more than 8 years. The question is (i) whether a person can receive a substantively fair trial in front of a judge or magistrate – despite the long delays and (ii) whether the delays itself affronts our idea of what a fair trial in an open and democratic soceity might look like.
Will a judge be able to come to the case without such strong preconceptions that it would make it impossible for him or her to have an open mind about the guilt or innocence of the accused? Will it still be possible for a judge to ascertain what really happened and whether the accused is guilty beyond reasonable doubt or will the long time be so unreasonable as to make this impossible? Will the delays be so long and so unreasonable as to have “punished” the accused so severely that it would make a fair trial impossible? And can these delays be attributed to the tardiness of the state to such a degree that it cannot be squared with the notion of a fair trial in an open and democratic society based on human dignity, equality and freedom?
In answering this question the court will be pragmatic, looking at all the relevant factors – including the nature of our criminal justice system, the complexity of the case and the behaviour of the parties. A court will have to look at the totality of the facts in the case and will also have to ask who is to blame for the delays – although this might not be decisive.
Clearly both the state and Mr. Zuma are to blame. Mr. Niehaus denies this, of course, (but then again, he will deny that the earth is round if it would please his boss), but the various applications brought by Mr. Zuma before the trial has even started has clearly contributed to the delays. In the judgement dealing with the validity of the search and siezure warrants the Constitutional Court made clear that an accused should normally refrain from bringing these technical applications even before a trial starts. the question of whether a person can get a fair trial, should ideally be decided by the trial judge during the trial.
This means Mr. Zuma will not come to the court with clean hands as he has launched one application of the other since 2005 to try and make sure he does not get his day in court – and this might count against him and detracts from the persuasiveness of Mr Niehaus’ argument.
On the other hand, the behaviour of the state will not be irrelevant, so the fact that Bulenani Ngcuka bizarrely decided not to charge Mr. Zuma along with Schabir Shaik might indicate that the state is also not coming to this with clean hands.
However, in the end, lawyers for Mr. Zuma will have to show that it would be impossible for Mr. Zuma to have a fair trial because the case has dragged on so long that witnesses would be unable to remember what happened or the media frenzy had so sullied the water that not even your reasonable judge would be able to come to the case with an open mind or will be able to ascertain what the true facts are. or they will have to show that the state, through its own inexcusable actions have “punished” the accused so severely that the delays are now deemed to be unreasonable because they affront our sense of what a fair trial might be.
Of course, the case is far less clear cut than Mr. Niehaus suggests. The fact that Mr. Zuma has substantially contributed to the delays will probably make it very difficult for him to convince a court that the delays were unreasonable. His best shot would be to point to the decision of Ngcuka not to charge him and to argue that it was the fateful decision of the previous NDPP that has delayed the case and that has made a fair trial impossible.
If I had to bet any money on it, I would say 9 out of 10 judges would dismiss such an application because of Mr. Zuma’s own role in delaying the trial. But if Mr. Zuma gets lucky, he will get that 10th judge who might agree with him, so its worth a shot.
Hey, its either that, or the prospect of facing fifteen years in prison. If your defense was funded by the taxpayers, would you not also have taken such a chance? I know I would. Whether South Africans would want to vote for a man too scared to face the music in his corruption trial is, of course another matter.
Pierre. Let me reassure you that Niehaus did not say anything new. It’s more like “you” finally decided to listen. The NPA has never wanted JZ to have his day in court. As for the ConCourt, the comment that “technical” arguments should be discouraged pre-trial is at best uninformed and at worst unreasonable. Assuming you were JZ, you are aware in 2001 that you are under probe. You read about the allegations against you in the media, yet you are not called to answer (mind you this is 2001, way before the Shaik trial – so your defense on the trial by media will limp in this regard). I digress. In short, an impression is being created, BUT you are not called to answer, nor are you informed (is this really how a deputy president of the country should be treated?). Then finally in 2003, the state sends 60 questions for you to answer, but before you can provide your side of the story, the same questions are published on the front page of a national newspaper (another one-sided publication of the version of events). Subsequent to that, you get information about an off-the-record briefing by the state with “carefully selected” black news(paper) editors (not radio or TV, ONLY newspapers), where it is alleged that your name was tarnished. Again, you get a sense that your side of the story is not being solicited. After all the fracas, comes the main event…prima facie BUT unwinnable. Now as Zuma, you are now convinced that INDEED there is NO INTENTION to allow you an opportunity to give your side. Now Shaik goes to jail, and just 10 or so days before you are now FORMALLY charged (not through the media this time), yours and your legal representatives’ premises are raided “Hollywood style”, with the media (again) rolling action. Imagine, hundreds of heavily armed men roaming your premises as though you feature in the list of the world’s “most dangerous” criminals, and all on national TV. Again, the picture paints the story BUT you still can’t give your side…continued…
…continued… Now, this is 2005 and the case goes to court. Again, you can’t give your side because the state wants a postponement. All along, the media is having a field day publicising only one side of the story: the states allegations. Would it really be UNREASONABLE for JZ to conclude that there is absolutely no intention to provide him with the opportunity to answer? According to the ConCourt, JZ should sit and hope that oneday a trial judge will give him an opportunity to answer? If one has no such hope, how then do they proceed to fight for their right to be heard? Is it not by exposing the malicious intentions of the state in a relevent platform (i.e. the court)? How then (within this context) does that amount to “delaying tactics” or “technical arguments”? Ridiculous!!!
Setumo, there is one problem with your argument: Given the state of our criminal justice system and the time it can take for accused persons to be convicted, if we agree Zuma must walk, we also agree that many others will walk. really bad, bad people. There cannot be one rule for Zuma and another for the child rapists. And lets face it, those child rapist will also squeel and complain about how they have been unfairly treated and how their case has not gotten to court yet. That is why the CC is quite hestitant to make it easy to find that an unfair trial has occurred. We do not live in Switzerland.
As if things couldn’t get worse, the state also lied. In 2005/2006 before Msimang J, the state said they could not proceed because the seized documents were being contested and these were vital in proving their case. Zoom to 2007 just before the ConCourts “bizzare” ruling on the same documents, the state was all over the media claiming that the still had a strong case “without” those documents. Ok, does this not mean there was no reason to ask for a postponement in 2005 because there exists a “strong” case even “without” the seized documents. Lies, more lies, damn lies.
Yes. I guess what Carl is saying is that the BS that the media and PdV has been spouting along the lines that Zuma has been playing “delaying tactics” is pretty damn far from the full truth. We are talking about a five year period from when the investigation started until the time that the state finally brought a charge and then only to be thrown out a year later because after six years of investigation they apparently still didn’t have evidence solid enough to make the “generally corrupt relationship” stick.
The ruling read by Judge Harms was careful to point out that Zuma currently faces charges which were brought in 2007. Ncuka is thus irrelevant, because the decision to charge Zuma was a new one and not a reversal or a review of a previous decision.
Most of the delays were appeals by Zuma, with only 1 being an appeal by the NPA. This, coupled with the Nicholson ruling (which was overruled, but hey it was in Zuma’s favour) shows that Zuma is getting very good treatment from the judiciary.
There’s nothing to prevent Zuma from getting a fair trial. He has to bite the bullet.
This argument by Niehaus and the ANC Legal Circus sounds very much like = “Hey, I [allegedly] committed these crimes ten years ago – and you never had enough evidence [or good enough or independent enough prosecutors; or the evidence that I've tried so in vain to suppress] to go to court. Now that you have the evidence [or good enough or independent enough prosecutors; or access to the evidence I tried to suppress] and wanna go to court – Tough luck, the Constitution says you can’t!” … This is of course all nothing but hogwash.
S 35(3)(d) of the Constitution of course applies only to “ACCUSED” persons, not suspects (since s 35(3)(d) cannot be modified like s 35(3)(f), (g) – right to legal representation; and (h) – right to silence as was once done by Kathleen Satchwell to also apply to supects). S 35(3)(d) speaks about the person having a right to have his “TRIAL begin and cnclude without unreasonable delay”, and, even a 5th grader will know that a criminal trial in South Africa cannot beging as long as there is not an accused person. So, when Ngcuka (eroneously and unreasonably) decided not to prosecute Zuma together with Shaik (which decision could have been challenged by interested poersons in terms of s 34 of the Constitution), Zuma was not an “accused person” until he, very briefly, appeared before Herbert Misimang. And, when thge latter struck the case off the roll, Zuma was no longer an accused person until he very briefly appeared before Nocholson J, who decided that he should not be an accused person because the correct procedures were not followed. Now that te SCA has overruled Nicholson J, and until he is re-arraigned for trial (which will take some time yet because Zuma has decided not to end at Bloemfontein, but to go to Braamfontein) he is ot an accused person. So, until such time as the “TRIAL” – not the “decision whether to prosecute and when to arraign” – is scheduled to begin (following an arrest or summons), and there is an unreasonable delay in the trial itself, s 35(3)(d) cannot be invoked.
Moreover, when one looks at s 342A of the Criminal Procedure Act, a court faced with an application for a final stay of prosecution (which is of course one of the orders that a court can give if the court finds that the delay has been unreasonble) the court will not only have to look at who was to blame for the delays [but here, I think the NPA has an edge over Zuma because, every time it tried to investigate or prosecute Zuma, Zuma tried through (mostly unsuccessful when they got to the highest court), applications to suppress the investigation or obtaining of evidence; or to have the trial struck off the roll]. The court will also have to look at other factors, which includes the right of society to see prosecutions of serious crimes happening. If the NPA does not discharge its constitutional duty properly, then society can even take the NPA to court in the light of s 34 of the Constitution and demand a proper trial. I think, in the light of all this, Zuma’s intention to apply for a permanent stay of prosecution (or “execution” as Khosi once said) will almost surely be destined to be dead in the water.
As far as his right to a fair trial is concerned, neither the “trial by media” or “delays in his being investigated and prosecuted” will have the tendency to render his “trial” unfair because, firstly, judicial officers are trained to be impartial and to distance themselves from media reports and, when a mistake in that regard is made, there is always the remedy of appeal; and, secondly, the delays in pre-trial investigations and decisions to prosecute will rarely, if ever, have an impact on the fairness of the trial itself. It is only when, during the trial, in other words, after arraignment (not necessarily after plea) and court appearance the prosecution unreasonably and unjustifiedly drags its feet in putting the charges and presenting evidence before court, that the fairness or not of the trial comes into play.
Jacob Zuma, please stop wasting taxpayers’ money and the resources of the state, and face your day in court? If you are innocent, you will be acquitted.
“judicial officers are trained to be impartial” Anonymouse? Please!!! If that was the case, Squires J would not have been misquoted by the SCA – remember that”generally” what what statement from the media? Where was their impartiality then? So please STOP irritating me with this “trained to be impartial” nonsense. I mean, can a judge preside over his spouse’s trial? They are “trained to be impartial” after all, arent they? Be realistic and stop feeding us unrealistic 1st/2nd year LLB textbook phrases! As for the good professor, what shocks me is how if one carefully analyses his argument and logic in this post, one would have thought he was going to come to a 50-50 chances for JZ, but NO, he comes to a 10% chance, contradicting his very own argument! Yet people preach” trained to be impartial”- maybe on the other planet!
Tell me, Anonymouse, what legal options did Mr Zuma have on the SCA’ s erroneous but, I dare you, intentional statement? Would you and sundry have accepted/accept that Zuma had/has a Constitutional right to seek for such “remedies” as you eloquently articulated in your very previous post above? Wouldnt that amount to “delaying tactics” frm JZ in your learned eyes? It is these double standards and constant contradictions from all quaters that makes one conclude that JZ CAN NEVER get a fair from any Judge-they are all either pro or, like most, anti Zuma. I am convinced of this!
Spuy:
In what way was the JSC ruling partial?
On what do you base your 50-50 chance? The prof clearly stipulated that the judges, when they are being impartial, will 9 times out of 10 rule in favour of the state. If, however, Zuma is lucky enough to get a partial judge, he’d see the ruling go in his favour.
This is not a coin-flip probability exercise.
In what way was anonymouse’s comment partial? Clearly, Zuma can only be an accused once he stands accused. Clearly, he can only lament about a lengthy trial once he’s had an actual trial..
…obviously this is a debate I m never gona win! Garg are you now perpetuating the very sad legacy of misqouting people, like your very “trained to be impartial” judges now? I mean where in my two posts above do I mention JSC, seeing that you now want me to explain its rulings? I may be bad with spelling, but not that bad! Calm down and read my posts again-problem with you guys is that any good related to Zuma get you so emotional that you cant even read properly!
You said that judges were partial.
I was merely pointing out that there is an entire system that allows for appeals, for instance.
Also note that the only partial judge thus far was Judge Nicholson, and he is not going to try Zuma. Problem found, problem solved.
All these factors indicate to me that Zuma – and anyone else who gets tried – has a very good chance of having a fair trial.
And I was curious where your 50/50 chance stems from? I just have an interest in probability.
Okay, Garg, judges who find in Zuma s favour are “partial” those who dont are impartial as you said above, sadly i cant copy&paste with this cellphone. Anyway, thank you for vindicating us. Impartiality=finding against Zuma, Partiality=finding in favour of Zuma, just as Nicholson J was ridiculed even by mere deputy deputy editors of newspapers. People like you (Garg), SCA Judges(not JSC), contitutionally bias bloggers and indeed Moseneke J, with your deep-seated hatred for JZ help us arrive at the conclusion that his case is highly contaminated that it can never be fair.
My 50-50 chance flows from Prof s analysis, logic and argument. I just disgree on probabilities in figures with him not on argument! I just believe he erred on the conclusion mathematically, which is no suprise really-we all know where each other stand as far as JZ is concerned.
Spuy, you have no argument.
Thanks for correcting me, I was referring to the SCA judges, who also agreed that Judge Nicholson neglected judges on the day in question.
I suggest you wear a tinfoil hat before the mothership finds you.
That should be “…who also agreed that Judge Nicholson neglected judges on the day in question.”
That should be “…who also agreed that Judge Nicholson neglected justice on the day in question.”
Excuse me.
Spuy – You have obviously not followed and participated in the debate on whether the SCA did actually misquote Squires J under the post on the previous page below titled
“SCA provides common sense interpretation of section 179″
Go and read that debate and give us your learned insights before making 5th-grader remarks such as: “So please STOP irritating me with this “trained to be impartial” nonsense. I mean, can a judge preside over his spouse’s trial? They are “trained to be impartial” after all, arent they? Be realistic and stop feeding us unrealistic 1st/2nd year LLB textbook phrases!”
Even you should see that Zuma’s trial would not be presided over by a spouse of his, unless, of course, he secretly takes the judge as one of his many wives or concubines.
Your cynical observation that judges in SA are not impartial (albeit only in relation to your misplaced views on whether Zuma – the man! – will get a fair trial) implies that no person in SA today will ever get a fair trial. I guess that would spell anarchy then, and we will all have to take up our umshini’s and let the fittest survive! Are you being deliberately obtuse MON?!
Spuy – And while you’re at it, please go and read Khosi’s remark on the Zuma Camp’s not interfering too much in Mbeki’s handling ofd the Selebi debacle and my response thereto in the previous post “Questions for Chikane et al”. So, regardless of whether Zuma will get a fair trial, the whole ANC is tainted with being funded by drug-trafficking, money-laundering and racketeering.
I agree with Mouse that the speedy trial provisions relate to accused persons. Section 35 deals with three categories of person: arrested, detained and accused. The Rights are not spread uniform across all three categories, but specifically dealt with in terms of each category. The reference in 35.1.4 to bring the arrested person before the court within 48 hours is a means to have an independent judge test the legality of the detention in order to prevent arbitrary state actions. It has no bearing on JZ’s ability to have a fair trial. Therefore, his only recourse could be in terms of 35.3.4. Even if we regard JZ as an accused person from the first time he was arrested (just after he was sacked by Mbeki) right up until now, it is by no means an unreasonable delay in South African terms. In fact, the State can be shown currently to be doing everything in its power to speed up the process.
But JZ’s argument is worrying for me, as it attempts to place some sort of early prescription on criminal liability which is contrary to the nation’s interests. The child rapist’s example is appropriate. It would mean that if I was sexually abused as a child and my mother felt something was wrong so called the police, and they questioned a few neighbours and relatives (one of whom was the perpetrator), if I realised 5 years later I’d suppressed the memory and then wished to bring a charge, by JZ’s reckoning I’d already be out of date. If SAPS had investigated a crime and then gone through lengthy extradition processes to bring the alleged wrongdoer to trial in South Africa, and all the investigation AND extradition process had to be taken into account, then that case would be time barred before it had begun too.
Why can’t this man stop playing the victim, go to court and clear his name?
Setumo, any ideas?
Zuma to play his next card on Feb 4 http://www.news24.com/News24/South_Africa/News/0,,2-7-1442_2458639,00.html
I can also refer you to statement made in 2003 which was issued by GCIS. He claimed emphatically that the bone of his contention is that he has been deprived an opportunity to respond, whereas allegations against him where turned into a matter of public debate with the assistance of “leaks” from inside the state. Nowhere in this world could this amount to fairness. Outrageous!!!
Pierre, Anon and Mpho. The argument for a fair trial is not premised on the “delay” alone, but on the assertion that this delay was intended to deprive JZ an opportunity to respond in court, whereas allegations against him continue to gain the status of “facts” as front page headlines in the media over a period of 8 years. This is captured very clearly in my initial post, and it also appears in Nicholson’s judgment. This has absolutely NOTHING to do with the length of investigation or any other court procedure. The state has consistently “hinted” that they have a case (and sometimes a “strong” case), but they declined to go to court. Truth be told, Msimang thrown the case out because “JZ was fighting to get his day in court!” I pose the question again: if JZ’s “state of mind” was that he is being denied an opportunity to respond to the publicly displayed allegations, is it unreasonable to bring pre-trial litigations so as to expose the state’s malicious modus operandi? Does this still constitute delaying tactics and/or technical arguments?
@Mpho. Way back when JZ’s supporters were crying foul around the conduct of the state in collusion with the media, where was this “appetite for debate”? Now that the prospect of a JZ presidency is real, people have suddenly developed the desire to debate. Those who envisioned long ago that this trial was about the 2009 elections have long debated these issues and came to a conclusion that JZ will be president come rain or sunshine. This is a very honest advice: moral high grounds and subjective social principles will never win this debate. PS: the post at 8:27 was posted before the 8:25.
Setumo Stone // Jan 25, 2009 at 8:27 am
………………………………………………………..
To prove that “The argument for a fair trial is not premised on the “delay” alone, but on the assertion that this delay was intended to deprive JZ an opportunity to respond in court, whereas allegations against him continue to gain the status of “facts” as front page headlines in the media over a period of 8 years.” would even be more insurmountable. A person who knows that he is being investigated, and that there are claims that there is a strong case against him cannot, simply because it takes so long to conduct the investigations (no small part to be attributed to his own attempts to sidetrack or suppress those investigations), claim that he is now entitled to a permanent stay of prosecution.
Moreover, the state never “declined” to go to court. Ngcuka did not want to go to court because Zuma was a ‘comrade’. Pikoli wanted to go to court because there was a case for Jacob Zuma to answer. He was however stopped in his tracks by Msimang J, simply because the appeals concerning the search and seizure matters and the obtaining of the Mauritius documents (matters in which JZ was actively involved to have them decided against the NPA – his fault again, not that of the NPA) have not been finalized and the state did not want to continue without the BEST evidence available to it to prove its case. Without that evidence, the trial would of necessity have embarked on numerous trials-within-the-trial to determine issues such as admissibilty (based on authenticity) and the fairness of the seach and seizure procedures. JZ himself chose to oppose the use of that evidence even before the trial could start, not the state, who wanted to avoid these side-issues during a trial and wanted the (fair) opportunity to present the best evidence available in the circumstances and not wanting to rely on secondary sources. To argue that he has been unfairly denied the right to respond in court under such circumstamnces is stupid, to say the least.
Setumo – continued: Mpshe also wanted to go to court after the (flawed, so it is submitted) Msimang decision to strike the case from the roll, and after the search and seizure matters (and the Request from Mauritius matter) have been decided in favour of the NPA by the highest court in the land, even though the Mauritius matter is still being delayed and attacked there by the Zuma team. (The state can however do without those documents since the SCA and the CC have already ruled that6 there was nothing wrong in the trial court in Shaik havingadmitted copies of the documents.) This time around, however, Mpshe’s decision to go to court, and the state was ready to proceed had it not been for the looming frivolous application to delay the prosecution once again, was however stopped by Nicholson J’s unfounded and ‘wrong in law’ decision that he could not be charged for want of following the correct procedures. This matter is now being atken to the CC, by the Zuma camp, who else? So, who is to blame for the delay, hmmm? Why did Zuma not before Nicholson J already apply fora permanent stay of prosecution? Kemp J Kemp’s coffers (the waste of tax payers’ money) and the possibility (nay, probability) of such an application being dead in the water surely played a significant role in bringning the wrong application before Nicholson J. Surely Zuma’s application for leave to appeal to the CC is just another attempt at keeping the matter out of court (ergo: of delaying his day in court)? Be real MON!
Setumo Stone we have been debating this issue for a long, long, far too long time. So please don’t come along and try to claim that you have not been writing on this very Blog excessively on this subject.
Secondly, if JZ felt his name was being dragged through the press and insinuation or suspicion displayed as fact, then he should have asked the courts to interdict the papers, or sue them for defamation.
And I also experience outrage in respect of this matter. However, the only outrageous thing that I can see is that there are still intelligent people in the ANC, such as yourself, who think that it is appropriate to defend someone’s refusal to face up to charges relating to alleged abuse of high political office. What makes you think that you know the real story when the evidence and witnesses have not been put to the stringent tests found in the criminal courtroom? Your behaviour is far worse than the behaviour of anyone calling for JZ to stand trial and clear his name. You want the criminal justice system by-passed whilst the rest of us believe that JZ will stand a fair trial and if he is guilty he’ll be found so fairly, if he’s innocent then he’ll walk.
Tell me Setumo, what is your opinion of the case involving the MEC for Health from KZN?
However, as I understand it, any more delaying tactics will have to run concurrent with the criminal trial (a bit like the Pikoli saga where the Speaker has yet to rule on whether it is right to have a person convicted of corruption and bribery co-chairing a Parliamentary Joint-Committee at the same time as the Committee is proceeding on deliberating the matter!)
The sooner a date is set for this trial the better. If JZ’s lawyers can’t make an earlier date, then he can just do what he is alleged to have done in the Mail and Guardian, and instruct another team of lawyers to appear on his behalf.
And Setumo, what is your view on the killing of Jimmy Mohlala and the sudden reinstatement of Jacob Dladla despite the allegations of corruption against him not having been resolved?
Mpho, pls dont bring a new debate now, unless you can show the relevance thereof. Anyway, even Lawrence Mushwana, the Public Protector once found that Zuma s rights were violated. It would indeed be naive to see Zuma s case as legal, even an my dad who never got to high school see it as political. I ll still ask: what is wrong if Zuma fights his battles in court to level the playing fields before the actual trial (if it gets to it, that is)? I mean Zuma is so powerful politically, in fact, even more than Motlanthe, he could have resorted to any political way out, like simply getting a new NDPP to squash the case and you guys would have complained of abuse of power. He goes legal, you complain of delays!
I honestly believe in the interest of the whole country, this whole Zuma issue should be handled politically, fact is that it has split the country into 2(two) pro&anti Zuma camps. And both camps have intense feelings on it. My fear is that as nice as it is to debate it daily as we do, it wont be as pleasant when it had gone to a stage of triggering a civil war. My question is, is it real worth loosing many lives over what? Half a million rand! Just because we were too entrenched in our little camps! Remember that politicians have followers-hence I submit that it would be myopic to see this case as just “legal”. Truth is any legal outcome not in favour of JZ will never be acceptable to his followers, in as much as any outcome in his favour, whether legal or political(especially), wont be acceptable to his detractors. What then? Let us please try to debate this issue beyond legal semantics and assess its probable impact on our beautiful country, we really need to move on now! I, personally, am tired of this whole debate around JZ, I truely believe political solution is round about the only way out-for progress sake!
Setumo Stone, no, no, no, no. The harm to Zuma (because let’s face it, there has been serious harm to Zuma – he hardly has any credibility left with thinking, rational people all over the world), has not resulted from the state HINTING that there is a case against Zuma. It has resulted from the fact that A COURT OF LAW (not the state) has convicted someone (Shaik) for BRIBING Zuma and for soliciting a bribe on behalf of Zuma from an arms company. Read the judgments. It found Shaik gave more that R1 million to Zuma. It found that Zuma did favours for Shaik in return. It found the relationship between Shaik and Zuma was one that was mutually beneficial. It found that Shaik and Zuma had met the rep from the arms company who then paid a R500 000 bribe after sending a fax confirming an agreement with Zuma that Zuma would protect the arms company from exposure in the corruption investigation. These are not “hints” but facts proven beyond reasonable doubt in a court and confirmed on appeal. Any reasonable person could be forgiven for thinking that Zuma is a crook. The only way this suspicion will disappear is if Zuma is acquitted in a court of law, but Zuma is doing everything that money can buy to try and avoid clearing his name in court.
You might argue that he is doing this not because he is guilty as sin and is trying to avoid 15 years in jail, but because he is a principled man who believes that the rights of accused persons should not be trampled on and he needs to take a stand on this constitutional issue. But you would have some trouble convincing any informed, rational, person of this view as Zuma himself has said that criminals have too many rights and that some criminals should not be entitled to legal representation!!!!!! He has said the Constitution gives accused people too many rights and that the police should be given more power to deal with such persons!!!!! So this could not possibly be a move on his part to make a principled statement about the need to respect the rights of accused persons. It surely MUST be based on his view that he might very well be convicted if charged and therefore that he must make use of the same rights he want to deny other accused persons to try and stay out of jail.
Please explain why this does not disqualify Zuma from selling second hand cars, let alone from serving as President of our beloved country!
Pierre De Vos // Jan 26, 2009 at 1:01 am
What you fail to realize and what Zuma, the ANC and honorable judge Heath is trying to get through to you is that perhaps what you describe as “corrupt” as seen from Zuma’s side, was in fact the way that the ANC conducted its general business in the late 1990s. You know – BEE, PPP and all that ?
Now lets see for example:
“So, as far as BEE and the arms deal is concerned, people got on the bandwagon – especially people like Schabir Shaik – and Zuma threw in his lot behind Shaik’s BEE aspirations. This now turns out to have been premature in terms of what was allowed and what was not allowed. ”
http://www.armsdeal-vpo.co.za/articles08/wont_tell.html
“I argue that black economic empowerment — even its broad-based version — has not only failed to make a significant difference to the lives of the poor black majority but that it is still the major source of elitism, cronyism and corruption in both the economy and the state. There is much empirical evidence to validate this claim. Do you agree”
“I argue that the root of much cronyism and corruption is the ANC’s cadre deployment committee, which deploys members to both government and business. This has also led to a collapse of the distinction between the party and state and between the party and business, which a healthy and vigorous democracy substantively requires. Agree?”
The above are just some questions put to Motlanthe by EBRAHIM HARVEY at http://www.mg.co.za/article/2009-01-09-well-triumph-over-cope
Also bear in mind that the Code of Ethics was only introduced to parliament in 2001.
ozoneblue // Jan 26, 2009 at 8:09 am
hey?
basically what your saying is oh cos this BEE was a new thing in the 90’s and no one really knew how or understood the concept of BEE that mistakes are going to happen and should be allowed esp when it comes to corruption and involves our leaders?
Yes ANC because in the 90’s and it was your first time in governement dont worry because of your lack of experience in arms deal with other countries and piloting the BEE concept, its ok if you did abit of back handing deals? and now you say its healthy for democracy? LOL ha ha wow Ozone blue you surly are up in the stratosphere arnt you.
“Also bear in mind that the Code of Ethics was only introduced to parliament in 2001.”
Oh ok so anything before that doesnt count? Yes Judge i commettted a rape in 1999 but the code of ethics only got relesed in 2001 so I cant be hold responsiable cos I didnt know raping was an ethical thing?
Mo Shaik has written a very elegant piece in which he argues that judges should err on the side of the constitution in order to be activist, progressive and other insulting adjectives:
http://www.mg.co.za/article/2009-01-26-justice-has-not-been-served
Can you say vested interest?
Garg Unzola // Jan 26, 2009 at 9:11 am
lol vested interest indeed
I wonder if MO Shaik knows there is a con side to judical activism?
judicial activism could be seen as drifting too far from the actual constitution and MO Shaik seems to think thatr judges should now be better than the framers of South Africas constitution which now seems to be neither the “National Interest” or “interst of Justice” but he seems to leave out that Judicial activism can easily be twisted for political purposes.
The reason MO cant accept Harms judgement is he seems to not understand the judgement and references to where Judge Nicholson went a bit to far with his judicial activism approach.
See im sure judges are keenly aware there are 3 forms of judicial activism.
1) Activism in reforming procedural rules.
2) Activism in political and social reforms
3) Activism in human rights
1) Procedural Activism brings with it a desire that judges should respond to the needs of the individual members of society, and, accordingly, should intervene in the trial process in order to achieve justice during pre-trial and trial process, the problem with this is judges have to make decisions before all the facts are known. They may overestimate the extent of their wisdom, intrude erratically into the pre-trial preparation and reach ill-founded conclusions eg Political Conspiracy
2)This movement promotes the idea of judicial activism in the field of social reform and argues that the blindfold should be removed from the Goddess Lady Justice
Judicial activism involving political and social reform is a dangerous phenomenon. By that, I mean activism by conservative judges, to ensure that cases are decided in accordance with conservative values and activism by liberal judges to ensure that cases are decided in accordance with liberal values. Judges should not decide cases in accordance with their personal inclinations this that the function of the courts has become political and rightly opens the courts to public attack on political grounds. Which we have seen and be branded as counter- revelutionists
3) Judges persuade themselves of the force of their duty to the positive law and government policy. The court then becomes a chamber legitimising oppression. It gives substance to claims made by the government that the rule of law exists under the particular regime.
Appropriate judicial conduct must tread a fine line between judicial activism of the kind that results in judges making new laws to satisfy their own political, social beliefs, and judicial alertness to protect human rights by construing legislation in a humanitarian way and in being acute to examine claims of police and other authoritarian misconduct against individuals. This is a difficult task indeed, but essential for the proper maintenance of the rule of law. Above all, it is consistent with the judicial duty of neutrality and impartiality.
Pierre De Vos said “Setumo, there is one problem with your argument: Given the state of our criminal justice system and the time it can take for accused persons to be convicted, if we agree Zuma must walk, we also agree that many others will walk. really bad, bad people. There cannot be one rule for Zuma and another for the child rapists. And lets face it, those child rapist will also squeel and complain about how they have been unfairly treated and how their case has not gotten to court yet. That is why the CC is quite hestitant to make it easy to find that an unfair trial has occurred. We do not live in Switzerland.”
I AM NOT A LAWYER AND THEREFORE WILL NOT LOOK AT THE LEGAL ASPECTS OF YOUR RESPONCE BUT REALITY.
Jacob Zuma has not been detained (Jailed, awaiting trial in prison) and therefore for you and him the problem of our criminal justice system is not significant. For people who await trial for more than 5 years this is a problem. The poor are being treated by the Justice System horribly and we try in blogs like this to justify it by saying we must not let “really bad, bad people” to walk. What must we do then, let innocent people to languish in jail so that the “really bad, bad people” get justice? We are not Switzerland, I agree but do we take away peoples rights in order to convict one individual.
A friend of mine was detained for more than 6 months and he was never charged. Another friend of mine was beaten up by police and his case has taken eleven years and it is still not complete. As much as Judge Langa feels the Judiciary has been unfairly targeted it has a lot to answer for.
I have always said and will say again that the two side of the Zuma debate are so entrenched in their views that they don’t acknowledge that the other side might have a point and telling the true. Any Judge whose judgement is for Zuma is attacked and ridiculed, any judge who judges against Zuma the same occurs. But in all cases it’s the kettle calling the pot black.
The Prof contends that:
“It has resulted from the fact that A COURT OF LAW (not the state) has convicted someone (Shaik) for BRIBING Zuma and for soliciting a bribe on behalf of Zuma from an arms company. Read the judgments. It found Shaik gave more that R1 million to Zuma. It found that Zuma did favours for Shaik in return. It found the relationship between Shaik and Zuma was one that was mutually beneficial. It found that Shaik and Zuma had met the rep from the arms company who then paid a R500 000 bribe after sending a fax confirming an agreement with Zuma that Zuma would protect the arms company from exposure in the corruption investigation. These are not “hints” but facts proven beyond reasonable doubt in a court and confirmed on appeal. Any reasonable person could be forgiven for thinking that Zuma is a crook. The only way this suspicion will disappear is if Zuma is acquitted in a court of law, but Zuma is doing everything that money can buy to try and avoid clearing his name in court.”
I don’t understand why the Prof wants Zuma to go to court when he has already convicted him. He even assumes that the judges in the criminal trial will be impartial and then he himself has already found him guilty because of a previous trial. What must we take from this? Is the Professor admitting that it would be difficult to find an impartial judge or is he the only person in South Africa who has already made the finding of the anticipated trial?
Can Zuma get a Fair; I can now definitely say NO, reading this blog and the Professors argument.
Can Zuma get a Fair trial; I can now definitely say NO, reading this blog and the Professors argument.
chris mcdaniel // Jan 26, 2009 at 9:00 am
“basically what your saying is oh cos this BEE was a new thing in the 90’s and no one really knew how or understood the concept of BEE that mistakes are going to happen”
Yes – although I don’t respond to trolls usually that is exactly what I’m saying. And it is not only the dodgy issues around the implementation of BEE – it goes much further than that into a system of governance aptly named the “revolving door” of which the USA, the ultimate example of “good governance” in a capitalist regime, is a splendid example.
“In the United States the co-optation of political parties and government by business, is acute. For example, every one of the 10 largest contracts awarded for work in Iraq and Afghanistan after the destruction following the United States invasions of those countries went to companies employing former high-ranking government officials, and all top 10 contractors are established donors in American politics, contributing nearly $11 million to political parties since 1990.47
Charles Lewis, the director at the Washington DC based Centre for Public Integrity, remarked as follows about the cancerous contamination of politics by powerful financial interests in the United States in his publication The buying of the President:
Hundreds of former public officials routinely shill for powerful corporate interests, well-paid fixers who facilitate the successful synergy of mixing politics and business – in which public and private sensibilities are blended until they’re almost indistinguishable – produces a natural, if not essential, elixir that practically all real “players” by definition must drink.48
In South Africa, the same dangerous cocktail may be gaining momentum as many political personalities with impeccable political credentials have moved into the private sector followed by top public servants. This has been facilitated predominantly by BEE, which is increasingly being distorted by some government officials, politicians, corporate capital and party officials seeking different forms of connectivity rather than the more noble intentions of BEE: to ensure that a transfer of wealth takes place from the top echelons of white capital to the mass base of poor black people. (See the introduction for information about BEE.) ”
http://www.issafrica.org/index.php?link_id=14&slink_id=3889&link_type=12&slink_type=12&tmpl_id=3
Educate me colleagues. I seem to discern that there is a lot of confusion in the “Delay” argument. The confusion arises from the failure to appreciate the difference between the rights of a person being charged and the rights of a person being investigated. To my mind, an investigation may take as long as possible for so long as the suspect is not under arrest or under charge.
Can someone explain why most crimes prescribe after 20 years?
ozoneblue // Jan 26, 2009 at 11:44 am
wow that put me in my place
I find it remarkable how you seem to know so much about my country and dealings in our war policies than what i do, maybe you must have contacts in our government to have complete access to all contracts and dealings we have had with iraq and afgan and I dont see what bearings this has on your statement
ozoneblue // Jan 26, 2009 at 8:09 am
and now your trying to bring in my countrys political wrong doings to justify your own governments political wrong doings to justify your argument goes to show how all over the place you are
so now your telling me if the US can get away with dodgy deals its ok for south africans to get away with dodgy deals? Yeh that makes it all right now doesnt it? very mature!
I think your very confused and im being honest, you pointing out all the wrong doings about BEE and Arms deals and all other corruptions that have taken place but yet your justifying everything because it was all pre 2001 so it makes it right and not wrong?
rather warped dont you think? so lets take that notion of yours lets look at apartheid it was pre 2001 but there wasnt a code of ethics so i can now justify apartheid was right cos they didnt know any better and was completly White Economic Empowerment
“This now turns out to have been premature in terms of what was allowed and what was not allowed. ”
Also bear in mind that the Code of Ethics was only introduced to parliament in 2001.
Ozoneblue
wow that put me in my place
I find it remarkable how you seem to know so much about my country and dealings in our war policies than what i do, maybe you must have contacts in our government to have complete access to all contracts and dealings we have had with iraq and afgan and I dont see what bearings this has on your statement
and now your trying to bring in my countrys political wrong doings to justify your own governments political wrong doings to justify your argument goes to show how all over the place you are
so now your telling me if the US can get away with dodgy deals its ok for south africans to get away with dodgy deals? Yeh that makes it all right now doesnt it? very mature!
I think your very confused and im being honest, you pointing out all the wrong doings about BEE and Arms deals and all other corruptions that have taken place but yet your justifying everything because it was all pre 2001 so it makes it right and not wrong?
rather warped dont you think? so lets take that notion of yours lets look at apartheid it was pre 2001 but there wasnt a code of ethics so i can now justify apartheid was right cos they didnt know any better and was completly White Economic Empowerment
“This now turns out to have been premature in terms of what was allowed and what was not allowed. ”
Also bear in mind that the Code of Ethics was only introduced to parliament in 2001.
But im lost what does this have to do with the original debate of this post which is about delay tactics
chris mcdaniel // Jan 26, 2009 at 12:48 pm
I was simply quoting from the C. Lewis paper “The buying of the President ” published by the USA based Center of Public Integrity. I wasn’t “justifying” anything either. The comments I made was in relation to PdV’s comment about Zuma’s having been “proven to be in a corrupt relationship” and judges Heath, Squires and Harms pointing out that is not a correct assumption to make.
Perhaps if you are so sensitive about your mind-bogglingly corrupt US government you should rather go an troll on some American blog ?
Spuy // Jan 25, 2009 at 10:32 pm
I am bringing in relevant issues.
Samaita // Jan 26, 2009 at 12:04 pm
Thank you for returning to the point we were trying to make before everyone gets caught up in the frenzy of not allowing anyone an opinion on a matter until a Criminal Court judge has pronounced guilt.
Of course the investigation can take almost as long as they like. And of course, in criminal prosecution terms (post arrest), Zuma’s trial has not been delayed unduly.
Thomas // Jan 26, 2009 at 11:07 am
I’m not sure I understand your point. Are you saying that Zuma is actually undertaking public interest litigation via his criminal trial? But he doesn’t need to do that. He has Standing to bring a case on behalf of all those detained persons and to base his case on their very real plight.
But speeding up the trial for detainees has NOTHING to do with Zuma’s arguments that because a complex corruption and bribery case takes a few years to prosecute, this means the State’s ability to prosecute him has prescribed.
Spuy
// Jan 25,
2009 at 10:32 pm
I am bringing in relevant issues.
Samaita
// Jan 26,
2009 at 12:04 pm
Thank you for returning to the point we were trying to make before everyone got caught up in the frenzy of not allowing anyone an opinion on a matter until a Criminal Court judge has pronounced guilt.
Of course a criminal investigation can take almost as long as they like. And of course, in criminal prosecution terms (post laying of charges), Zuma’s trial has not been delayed unduly.
Ozoneblue thats the problem your quoting something from a subject matter that has no relevence to your life and you know little about i dont understand what the US has to do with the subject at hand?
correction Judge Heath, Squires and Harms actually pointed out that there is a corrupt relationship do we need to go through this again to point out what the judgements were?
@ Spuy – I am bringing in relevant issues.
@ Samaita – Thank you for returning us to the point of the debate.
I agree, a criminal investigation can take almost as long as the SAPS/Scorpions likes. And of course, in criminal prosecution terms (post laying of charges), Zuma’s trial has not been delayed unduly.
@ Mpho: I am responding to the Prof when he states: “if we agree Zuma must walk, we also agree that many others will walk. really bad, bad people. There cannot be one rule for Zuma and another for the child rapists. And lets face it, those child rapist will also squeel and complain about how they have been unfairly treated and how their case has not gotten to court yet.”
I don’t know the complexities of corruption and bribery cases but this was not the Profs argument if you read above.
Please correct me if I’m wrong but technically Zuma’s trial only begins on 4 February 2009? The delays so far were because of Zuma’s appeals and attempts to block evidence, not because of the judiciary delaying trial.
In the meanwhile, Zuma has not been detained. He’s rights have not been infringed in any way. He’s a public figure so he makes the papers. This does not constitute a trial by media. Judges quoting newspapers in their rulings do not constitute a trial by media. There is still prima facie (wonder if that’s related to Brenda Fassie?) evidence which Zuma has to face, regardless of what the newspapers may say or how the newspapers got their information.
I repeat the Prof has stated the following
“It has resulted from the fact that A COURT OF LAW (not the state) has convicted someone (Shaik) for BRIBING Zuma and for soliciting a bribe on behalf of Zuma from an arms company. Read the judgments. It found Shaik gave more that R1 million to Zuma. It found that Zuma did favours for Shaik in return. It found the relationship between Shaik and Zuma was one that was mutually beneficial. It found that Shaik and Zuma had met the rep from the arms company who then paid a R500 000 bribe after sending a fax confirming an agreement with Zuma that Zuma would protect the arms company from exposure in the corruption investigation. These are not “hints” but facts proven beyond reasonable doubt in a court and confirmed on appeal. Any reasonable person could be forgiven for thinking that Zuma is a crook. The only way this suspicion will disappear is if Zuma is acquitted in a court of law, but Zuma is doing everything that money can buy to try and avoid clearing his name in court.”
I don’t understand why the Prof wants Zuma to go to court when he has already convicted him. He even assumes that the judges in the criminal trial will be impartial and then he himself has already found him guilty because of a previous trial. What must we take from this? Is the Professor admitting that it would be difficult to find an impartial judge or is he the only person in South Africa who has already made the finding of the anticipated trial?
Can Zuma get a Fair Trial; I can now definitely say NO, reading this blog and the Professors argument.
Hi,
Have resigned from Investec, am back into practice.
They will never win against Zuma.
Thomas, no one has already convicted Zuma but what Prof has pointed out and all the judgement that are pointing out is there is enough evidence for a corruption trial and the relationship Zuma had was corrupt, and now Zuma must answer to these charges. simple.
Yes Zuma can get a fair trial cos thats what the issue has been about since 2006 and every judge ruling has pointed out to a fair trial. simple
Zuma must just stop playing games and go have his day in court about corruption which still has not happend. simple
Samaita – I agree with Mpho. As far as your question is concerned: “Can someone explain why most crimes prescribe after 20 years?”
This is simply because after 20 years, it would be unfair to the accused, the witnesses and the justice system as a whole should a person be tried after 20 years after the crime has been committed. There are however certain exceptions to this rule, which need not be gone into here. What I say, a delay in the investigation of a crime for of up to 19 years before prosecuting someone will not make the person’s trial unfair.
To all the “fair trial” doubters, if Zuma is tried and acquited would that mean he had a fair trial?
Thomas you blithely state that he can’t get a fair trial after reading this blog and PdeV’s comments, but do not base this on any logical argument, or indeeed any argument at all.
Regardless of what the court of public opinion thinks of Zuma’s guilt or innocence, the NPA still has to prove all the elements of the offence, and it may fail to do this. This is where a judge is different to the lay commentators out there – he/she has to apply the law to the proven facts and make a determination.
All that Zuma has done with his endless strategy of repeated challenges is create the impression in the public’s mind he is unwilling to stand trial and has something to hide. The fact that one by one his applications are dismissed should tell us something.
Imagine this – Zuma goes to the NPA and offers to tell on all the other ANC Cde’s who made a mint out of the arms deal in return for immunity. Imagine if he’d done this as soon as he was charged. He’d be in the clear and some of his oponents might have been taken out of the equation. Problem is, just like in the Mafia movies he would have needed witness protection. Ooops, thats not gonna work if you want to be the Prez one day. Notice how his threats to blow the whistle seem to be getting more frequent as his options diminish.
It’s not the prof who convicted Zuma. It’s a court of law that convicted Zuma and already found him guilty of a bilateral crime. Shaik can’t be imprisoned for bribing Zuma if Zuma didn’t accept bribe money…
What remains is to determine how guilty Zuma is of that particular crime.
The outcome of Zuma’s trial is irrelevant. How the court decided on that outcome would determine if he had a fair trial or not.
spoiler // Jan 26, 2009 at 5:06 pm
“Imagine this – Zuma goes to the NPA and offers to tell on all the other ANC Cde’s who made a mint out of the arms deal in return for immunity.”
That is not going to happen cause the ANC will not allow this vendetta against Zuma to tear the party and our country apart. Can you imagine for example if Madiba is also implicated and/or if it is proven that Andrew Feinstein was correct and the BAE sponsored the ANC’s 1999 election ?
NO NO NO NO NO!!!!!
No Court has said that JZ has accepted a bribe! All they have said is that Shaik gave money to JZ which Shaik regarded as a bribe. JZ’s mens rea must still be determined in his trial and teh general consesnus seems to be that JZ thought it was just a comrade helping a comrade. So that could mean that the mens rea was absent.
Lol, sometimes I log on to this blog and choke on my beef stew when I read the patently absurd reasoning and *cough* logic (in a loose sense) of some of our fellow contributors.
I’m a bit late in the game, but here goes…*deep breath*
@ Spuy Jan 25, your father is uneducated and even he thinks it’s political. With absolutely no disrespect to your old man (mine also never finished school), I’m more interested in what lawyers and academics on both sides have to offer regarding JZ’s chances of a fair trial. People who do not have the requisite education, while still entitled to their opinions, are hardly authoritative sources when it comes to critical analysis of the law and it’s technicalities.
@Ozoneblue Jan 26, sometimes I wonder if you’re just saying things to stoke the fire, because every now and then you say something so patently stupid that my brain assures me that NOBODY would actually be able to bring themselves to believe it.
Seriously, the ANC conducted most of their business in the 90s through corruption and abuse of the BEE system, and this is justified because the Code of Ethics came into effect only in 2001? Seriously? Are the members of the ANC so thick that they needed a few very clever people to write down the do’s and don’ts of being a politician for them? They really didn’t believe that corruption was a bad thing? That it was fine to enrich themselves at the expense of the country, even though they had promised that BEE would do just the opposite? This was all ok because there was no codified document on ethical behaviour?
Are you mad?
At any rate, you effectively admitted that the ANC is populated by a bunch of thieves, which is what I’ve been saying for years – at least now I can claim around my neo-liberal dinner table that I have agreement with my theory, even by a die-hard-head-in-the-sand ANC supporter. You will be a hero in my neo-liberal circles my friend.
Regarding JZ, the man must shut up now and go to trial once and for all. Judges tend to be very well grounded and responsible individuals, who have acute abilities in critical thinking and reasoning, as wel as application of facts to the law. The judgement will be public, and open to scrutiny by legal minds in various spheres. There is also an appeals process available, which Zuma has used extensively to avoid actually having his trial. The man has no leg to stand on when he claims he won’t get a fair trial.
Of course, another of my theories (copyrighted, please note) is that when the ANC whips out the ‘fair trial’ speech, what they actually mean is that they think that JZ will be found guilty, all evidence considered, and this is just not fair. As Ozone so aptly pointed out, the ANC did conduct most of it’s business in less than ethical ways (until 2001, when the heavens opened and the revelationary document called the Code of Ethics appeared in a blaze of glory). It would be logical to presume that JZ was party to some of these dealings, and therefore not a far stretch to presume that he would look very guilty in the matter relating to the Arms Deal.
It just ain’t fair man, just ain’t fair I tell ya. Did nobody tell the Scorpions and the Courts that you can’t pick on the annointed one? It really is completely unfair…
I wonder if the schoolkids who could’ve been provded with free meals, or families who could’ve been housed with the money that was burned on the Arms Deal feel like they’ve been treated fairly? They probably haven’t thought about it, because the ANC has lied to them, but I wonder, if somebody told them the truth – in the Eastern Cape, Mpumalanga, rural KZN – I wonder if they’d feel like they’d been treated a bit unfairly?
In any event, the argument that JZ will not get a fair trial seems to me to lack any substance whatsoever. Somebody must prove that the judiciary has been tainted and I’ll start listening – until then, it’s the usual ANC drivel spouting forth.
Spoiler, Mpho and Big Slipper – Excellent posts! I agree in every respect.
The Big Slipper // Jan 26, 2009 at 8:37 pm
Yeah right – you carry on with your barrage of personal insults and your ANC bashing rant it will get you nowhere.
To get back to the point I’m making with regards to Zuma’s “mens rea” at the time as Mpho put it. As Richard Young put it :
“I think that Zuma is saying that he was just one of the people who got caught up in the whole excitement of the arms deal and the initial stages of black empowerment. In the last five years, black economic empowerment has become a ubiquitious thing and, partly because of maturity and laws and charters, it is now the norm. But in 1998 and 1999, there were no rules and regulations or norms whatsoever.”
http://www.armsdeal-vpo.co.za/articles08/wont_tell.html
So – in my mind one has to ask what were the norms or criteria used by government at the time for fairly and transparently nominating suitable partners for BEE deals. If it is true that Zuma “did favors” for Shaik by supporting his BEE business aspirations, was there some kind of bidding process or independent adjudicating board that he was circumventing? Or was it just a question of senior ANC members individually backing those personal friends who stood with them during all those decades under severely difficult circumstances in the fight against Apartheid.
How were BEE partners selected then and who else did “favors” for whom and what did they get in return for their “favors” ?
Bilateral crime. That’s all I’m going to say.
You misconstrue my complete flabbergastedness (is that a word?) – I’m not insulting you, I would genuinely like to know if you are mad – after those breathtaking statements I would ask anybody the same question.
The law (or any legislative literature) will always have grey areas – if it was cut and dried then judges would simply have to pass out sentences, and not actually do any judging. However, I simply refuse to believe that JZ and his peers were unable to discern for themselves what was right and what was wrong. Did his mother or father or elders never teach him that stealing from others is wrong? JZ is a Zulu man, the idea of Ubuntu would have presumably featured much more prominently in his upbringing than it did in mine, at least.
And you are telling me with a straight face that because there were no written rules, these grown men, many of whom had even managed to obtain a very wide perspective of the world through travels in exile – these same people couldn;t figure out that it might not be right to steal, bribe, corrupt and cheat?
If this is your contention, as outrageous as it is, then there is a second flaw with your argument. Quite simply, if I am unaware that I am doing something wrong, I do not hide it. I do not have secret meetings, I do not enter into secret side agreements – I simply do it out in the open. What need is there for me to engage in clandestine activities to obtain a discount on a luxury car, and then not declare it to parliment, if I am unaware that what I have done is wrong? Why would I send encrypted faxes if I was unaware that what I was doing was wrong?
I don’t think your argument stands on the first leg of this, but it wouldn’t make the grade for the second leg either. Those men and women who gorged themselves (some literally) on the fat of the land while millions languished in abject hopelesness were not for one second unaware that they were engaging in some ethically and legally sketchy activities (at best).
You do yourself and your party membership much greater insult than I do by suggesting that they are such ignorant buffoons that they are unable to discern on a basic level what is right and what is wrong, unless somebody actually writes some rules on a piece of paper for them. If that’s the case, thank heavens we already had laws against rape and murder when the ANC arrived in Parly, or who knows what would have happened to our politics.
So Ozoneblue, we are all in agreement then that JZ must go into the courtroom and put his side of the story to the Judge? Yes! I’m so glad. Because quite frankly this business of him having a chat to the Prosecutors to put them straight about things is actually not how the criminal law works. That chat all happens before a Judge.
Then, finally, we can put this matter to rest.
(ps to the non-lawyer who can’t quite get his head around the fact that one man’s guilt does not another man convicted make, think about the common law crime of rape. Often whilst the rape was proceeding, the woman (it was a gendered offence) felt she was being raped, but the man thought he was having consensual sex. No mens rea = no conviction.)
The Big Slipper // Jan 26, 2009 at 11:22 pm
Just shows you how incredibly naive you are. Do you really think that encryption of faxes indicates that dirty dealing are taking place or perhaps that is the way that the corporate world, not to mention the arms industry, places a high premium on the confidentiality of information, irrespective of its nature?
So lets see from the Squires judgment:
“It is also common cause that Thomson’s office in Pretoria had facilities for sending an encrypted fax and that this was a frequent means of communication of confidential material.”
I would in fact be flabbergasted if Thomson as a major operator in the arms industry would exchange any information between its subsidiaries in any format other than encrypted faxes.
I was merely using it as an example of something which might be construed to be somewhat awry if I wasn’t aware I was doing anything wrong. You’re not arguing now that the directors of a multi-national arms company were unaware that bribery was illegal are you? That would be difficult to fit into your theory of BEE, considering the company is French.
If you prefer, ignore the comment about the encrypted fax, and substitute it with anything you like that holds true to the original intention of my point – if you are unaware that you are doing something wrong, you will not attempt to conceal your actions in any way whatsoever.
Instead of trying to explain to me how the corporate world works, I invite you to refute that statement. Stay on point – this isn’t an election campaign, I’m not a mindless drone, I’d like us to stay focussed…
How much was Zuma’s case really about having been afforded an opportunity to make representations?
Well, he missed the deadline for making those to the NPA due to “unknown” reasons. And it seems it is unclear whether they will take place at all.
http://www.iol.co.za/index.php?set_id=1&click_id=15&art_id=vn20090127001810387C627804
Make of it what you will.
Should Zuma be acquitted will his detractors accept the verdict from an “impartial Judge” Or shall we get the Judge Nicholson reaction and vice versa.
Thomas,
It is not about Zuma and/or the NPA, but about justice and the proper application of the law.
If the judge acquits Zuma and his/her judgement is based on the proper and sound application of the tenets of the law; then there will be no reason not to accept the verdict.
Nicholson’s judgement was based on the wrong application of the law as the SCA has shown.
Tony in Virginia: I will take that as a NO.
Thomas // Jan 27, 2009 at 2:04 pm
what difference does it make either way if Zuma is acquitted the NPA has full right to take it up to the SCA if Zuma is found guilty he also has full right to take it up with the SCA
The point is neither of the party will accept to lose this battle, agreed?
Zuma is preparing the path to the high office. We are busy canvassing now. I hope the judges are busy perusing law books on ” fair trial ” and the doctrine of sub judice ! There would be ground breaking jurisprudence development in the coming months!
This year will end with NPA and Zuma battling it out in the courts! He will certainly be President by the 27th April 2009!
Ishmael, at some point in the future, when my children and grandchildren ask me what the hell happened in SA that a man like Zuma became president, I’ll send them to youto explain.
Ishmael, you might want to start by having a look at the SCA judgment in the NPA v Midi Television which basically watered down the sub judice rule to such a degree that it can be argued that it in effect does not exist anymore…
Ag Thomas, is it so hard to get. To be convicted of a crime one must be shown beyond reasonable doubt to have had the intention of commiting a crime (where intention is required). No court has found that this intention exists for Zuma and I have never said that it did exist for Zuma either. Please read my comments again. The various courts have found that Shaik has paid money to Zuma and that Zuma did favours for Shaik and that Shaik did this with the intention to bribe Zuma. If a case ever happens, it will turn on Zuma’s intention or lack thereof. The rest is not really in dispute. Question remains: do we want a President who has taken money from a crook and then did favours for him – whether with the intention to be bribed or “merely” because he felt it was the right comradely thing to do… I know what my answer is. But hey, maybe I just believe in public morality and ethics.
Pierre De Vos // Jan 27, 2009 at 9:08 pm
Yes Pierre and that was also the point I was making. But now you use the word “crook” to describe Shaik and then count on a disingenuous little anachronism to call Zuma’s integrity into dispute for Shaik was only exposed as a crook after the fact.
If Zuma behaved in a loyal way to the Shaik’s because of their camaraderie during those many years of the Apartheid struggle I would say that he behaved morally – and that the “ethics of the day” as I also pointed out could have become blurred in a culture of unaccountable and unregulated “BEE”.
The personal loyalty that Zuma displayed is also not inconsistent with the way that he backed people like Oregan Hoskins for SARU presidency against the political zeitgeist at the time.
Now contrast that to Mbeki who has left a long bloody legacy of stabbing comrades and good friends in the back starting with Ramaphosa, Sexwale, Phosa then focusing on Zuma culminating with Billy Matsetlha and ending with Pikoli. But lets us rather not mention Matsetlha’s name as we note the deafening silence on the real source of those “hoax” emails before we get branded again as “conspiracy theorists”.
Ozoneblue – Crooks are usually exposed as crooks after the fact.
And then – Zuma behaving loyally to the Shaiks because of their comeraderie during apartheid, whilst at the same time being paid for behaving loyally (why else would such large ‘interest free loans’ – Baloney! The ‘loans’ were never repaid, neither was there ever any intention of repaying them! – be paid ‘tax free’ and without having been declared to Parliament or the Taxman), still amounts to corruption in my book. The previous relationship between the corruptor and the corruptee is irrelevant as far as the intention to corrupt (or to be corrupted) is concerned. The erstwile comeraderie would actually prove the NPA’s point – a friend in high places (politically), Zuma, did a favour for a friend in high places (financially and socially), Shaik, so as to enrich both the friend and himself, whilst the favour had to do with his high office and the influences he has (or had).
Now, the intention of the ALLEGED corruptee, Zuma, has not yet been proven in a court of law, but, if he goes to court with such a nonsense story, he is almost sure to be convicted. The court will surely not find that such behaviour is MORAL. Otherwise, to do favours for friends in such circumstances does not amount to corruption, but to do favours for people who are not friends, that is corruption. Your lack of logic, being a reporter and all, astounds me.
hold up is OzoneBlue just a reporter? if so has the arragence to challenge professionals in the field of Law?
his lack of coming up with orginal material astounds me
Anonymouse // Jan 28, 2009 at 8:53 am
“The ‘loans’ were never repaid, neither was there ever any intention of repaying them!’
That was an inference Squires made and has never been proven beyond a reasonable doubt with a defense calling witnesses for Zuma.
The prosecution, in my opinion and given the circumstances , would have to show that Zuma did those favors because of the “loans” i.e. bribes and not because of the preexisting friendship with the Shaik family. He may have done those “favors” i.e. character witness and endorsement of Shaik’s BEE aspirations anyway. The Squires judgment made it very clear that there was no “one to one” relationship between payments made to Zuma and the alleged “favors” done by Zuma in return. As far as the accusation of “enrichment” goes it appears to me that Zuma was indeed indebted struggling to make payments on basics such as rent etc. – which would make the likelihood for the need of a loan from a friend much more believable.
But in my mind the state’s case rests almost in its entirety on evidence that Zuma tried to interfere with the SCOPA investigation and the notorious letter to Gavin Woods allegedly written by Mbeki and signed by his deputy Zuma.
Ozonblue I think you need to re-read Squires Judgement when it comes to Alleged favors, they werent alleged nor is there accusations but actuall facts
If your having difficulty with this i can point out to you what Squires is actually saying
and I dont see how a deputy president of south africa cant seem to afford paying for his own rent?
as for your last paragraph no the case does not rest entirly on evidense that Zuma tried to interfere with SCOPA there are a whole host of evidence once again if your having difficulty on this subject matter i can point out to you what the evidence are.
chris mcdaniel // Jan 28, 2009 at 10:23 am
If you read any of my posts on this thread instead of continuously indulging in ad hominem attacks you would note that I’m speculating about Zuma’s “frame of mind’ as pointed out on various occasions by various judges including but not limited to Squires, Nicholson, Harms and most notably judge Heath who is probably in an excellent position to comment on the “ethical” back ground to the arms deal.
ozoneblue – Even ‘interest free’ loans would be enough to constitute a ‘benefit’ that was received for purposes of the crime of corruption – the benefit being the fact that no interest is payable on the loans, and the fact that the loans need not be repaid for an indeterminate time. I would like such a loan, I’m sure anyone would. The benefit from such a loan is enormous, to say the least. So the argument that the favour was done because of the friendly relationship while at the same time receiving such an enormous benefit is just so daft that no reasonable judge will ever accept that there was no corrupt intent in such a case.
Whether itt was an inference that was drawn by Squires is completely irrelevant – because before he could draw such an inference, the inference must have been supported by evidence and, in the circumstances, it had to be the only reasonable inference that could be drawn. Now, with the daft argument that I’ve alluded to above, any other court is bound to draw the same inference – it can simply not be true that one is so greatful for someone else’s friendship during apartheid, that one grants him such enormous benefits without expecting to be repaid, at least not within a reasonable time (have those loans ever been repaid to date?!); neither can it be reasonably possibly true that, whilst receiving such enormous benefits (just because one is struggling to foot the bill for one’s extravagant lifestyle that cannot be afforded on the pay of a Deputy President of theh country, and the pay of a Deputy President of the ANC), the favours he did was because Shaik is an old friend, and not because of the benefits received.
Anonymouse // Jan 28, 2009 at 11:16 am
“I would like such a loan, I’m sure anyone would. The benefit from such a loan is enormous, to say the least.”
Especially if you have ended up spending most of your productive adult life in jail and exile without any means of financially supporting yourself and your family because you were selflessly fighting for the freedom and emancipation of others.
Corrupt and morally depraved indeed.
fair enough ozoneblue as long as you stop attacking everyone else.
His frame of mind.
Basicaly his frame of mind and hense delays in his court apparence, my question to you is this cat and mouse game ,why?
All the trials that have taken place with Zuma have been on the bases of fairness of the trials, what we have had are petty trials to question the morals of the Judiciary escaping the fact why he is being called into the dock for the first place.
lets have a look where your money and my money has gone to.
R10.7m taxpayers have paid for his legal fees and heres the kicker just to prove that Zuma will or will not have a fair trial?
to make matters worse Jacob Zuma has threatened the Presidency with legal action for the state’s “nonsensical” reluctance to continue paying for his corruption trial defence.
This is either the actions of a greedy man or the actions of a guilty man.
Zuma is being prosecuted in his personal capacity
Now lets ahve a look here nn 2004, the ANC-led Western Cape provincial government refused to pay the legal fees in the corruption trial of former Western Cape premier Peter Marais and former provincial minister David Malatsi. The provincial government successfully had a lower court ruling that it pay the legal fees of the two overturned.
Why is JZ so special?
I thought i would add this one for you as well TM Speech to the nation with reference to your understanding of “mutually beneficial symbiosis”
“Unambiguous as the judgement may be about an assumed unsavoury relationship, the Deputy President has yet to have his day in court.”
http://www.polity.org.za/article.php?a_id=68997
ozoneblue thats why i say you need to re-read J Squires Judgement again
“Especially if you have ended up spending most of your productive adult life in jail and exile without any means of financially supporting yourself and your family because you were selflessly fighting for the freedom and emancipation of others.”
The judgement cover this a notes on His struggle credentials but it was no excuse for his dealings in corruption, why do you think he got 15yrs?
ozoneblue – “Especially if you have ended up spending most of your productive adult life in jail and exile without any means of financially supporting yourself and your family because you were selflessly fighting for the freedom and emancipation of others.
Corrupt and morally depraved indeed.”
Is this not also applicable to Nelson Mandela? What makes poor Jacob so special?
I’m sorry, I was under the impression that the arms deal occurred long after the struggle.
Garg Unzola // Jan 28, 2009 at 2:05 pm
apparently but what Ozoneblue is trying to tell us or justify the actions of Zuma and Shaik is cos they were in the struggle and went to jail they should now be immuned to any form of criminal charges cos thats all they knew was to fight with ak 47’s and have post tramatic stress due to their Vietnam opporations.
Garg et Chris – What he is actually saying is that, because Zuma was in gaol for quite a time, when he came out, he did not have enough means to foot the bill of his own extravagant (post-gaol) lifestyle. Even with the salaries and benefits he got from the state (as Deputy President at the time – but as Parliamentarian before then) and from the ANC (as Deputy Presdient of the ANC, he couldn’t afford the expensive houses and rent. Therefore, he had to lean on his friend Shaik to advance him rather extravagant interest free loans that God knows when he would’ve repaid, because it has not been done to date. I think, that pretty much sums up what ozoneblue is saying. That his suffering during apartheid actually justified his (CORRUPT!) actions by taking money from Shaik.
Yes i know just making light comedy so why oh why if Zuma cant manage his own personnal capacity is he now expected to manage a country?
Shaik and other entities related to the Nkobi group ended up settling debts and other personal expenses for and on behalf of Zuma to the tune of R1.2m.
he got himself into debt for R1.2m begs the question to what tune is going to get south africa into debt if he becomes president?
Chris – Yeah – what a question! But seriously, to blame it all on apartheid and his time in gaol – does ozoneblue really think we (and the voters) are all that dumb, that we would really believe it was for that reason that Zuma was obliged to incur such debts and receive such interest free loans to cover them?! What about the poor man (nay thousands, or millions of them) on the street and in the rural areas, who did not even have running water by then, for whose freedom Zuma REPORTEDLY spent some time behind bars. A moral man?! Yeah, some morality that we are speaking about here.
well im afriad im starting to learn theres no such word as morality in africa.
Its rather funny i must admit think about it yeh…if the ANC was in America, The ANC would actually be republicans lol
Anonymouse // Jan 28, 2009 at 3:51 pm
“does ozoneblue really think we (and the voters) are all that dumb,”
I think the “we” here refers to the bitter minority of South Africans who enriched themselves for decades, still hates the ANC passionately and did absolutely nothing about Apartheid if they did not actively support it. I believe the vast majority of voters who suffered under Apartheid however views what happened to Zuma in the context of the huge personal sacrifices he and others like him made during all those years fighting that brutal regime.
ozoneblue // Jan 28, 2009 at 4:12 pm
aaah so the agenda comes out now, im afriad we are dealing with someone who cant seem to look forward.
Ozoneblue if i was you i would seak theropy im serious yes lets not forget the passed but the time for blaming the pass is over with sorry, what u need to do is heal now and move forward. this is why i cant understand why u hate capitalizim….your free like evryone esle, i take it you like your life style u like your job you like going places??? well thats capitilizim. cos if your willing to work hard you get tog o places.
And you do know there were blacks who actually benefited under the regime, Im not justafying it, but the regime was brought down by words not bullets just remember that
one last thing Ozone before I go the ANC alone did not end the oppression the whole world stood up against it, my country, britian and the EU slapped sactions on the government.
However learn from your former enemies the afrikaans because before apartheid afrikaans were subjected to much crual punishment by the english. The concentration camps? first invinted here, the 2 Anglo Boar wars and so on.
But the afrikaaners made peace with the English and moved forward.
The blacks are not the only victims in the history of south africa
Anonymouse // Jan 28, 2009 at 2:01 pm
“Is this not also applicable to Nelson Mandela? What makes poor Jacob so special?”
I guess you should ask the NPA that – why did they not investigate for example the de Lille dossier which alleged three payments form Thyssen-Krupp each of R500000 to the ANC, to the Nelson Mandela Children’s Fund and Graça Machel’s Community Development Foundation. Now could that have anything to do with Thyssen-Krupp winning a contract – or is that just one huge “conspiracy theory” ? Did the NPA ever appoint KPMG to investigate how monies flow in and out of the NMCF or the CDF perhaps some of that could have inadvertently landed up in an “undeclared loan” ?
http://www.iol.co.za/index.php?set_id=1&click_id=13&art_id=nw20071106174802975C486767
Ozoneblue damnit your all over the place, seriuosly ur wobbling out abit,
Ozoneblue – Oh, now I get it, because he needed money, and because other got away with it, he should also be allowed to get away.
As for the ‘we’ being the bitter minority who have enriched themselves through apartheid. I was never one of those who were enriched. Neither were those who at the time, even today, after three spells of ANC rule, did or do not have the luxury of running water. But the leaders who went to gaol, they, well they’re something else, they need interest free loans to foot their private bills, but the poor beggar in the townships, who ave to steal for a living, must wonder where he will get his next bite to eat. And that, you call morality!
Hell, and if I knew Nelson Mandela was that corrupt, I would never have voted for him. But no, the payments did not go to Madiba, but to his children’s fund; and to Graca’s Foundation (at least the two did not need – or is that ‘greed’ – like Jacob Zuma did); and to the ANC. More reason not to vote for the ANC – the whole organization is corrupt. Where does a fish start rotting?
Ozoneblue, I am sorry to say but your line of reasoning is warped. It shows a very tenuous grasp of ethics as you are saying: others did worse so my man must be excused. It’s like a student saying: yes I did cheat in the exam, but other students cheated in more than one exam and they were not caught so it is unfair for me to be expelled from the University. No, it is not unfair that the student be punished for cheating. it is unfair that others are not being punished. the unfairness is not to Zuma, it is towards the nation who demands that others also are prosecuted if they did anything worng. Zuma has not suffered any unfairness – we as the voters and the tax payers have. This surely must be the standard of public morality we espouse? If not, why not?
Pierre De Vos // Jan 28, 2009 at 5:24 pm
I guess you didn’t read my line of reasoning in context of Anonymouse // Jan 28, 2009 at 2:01 pm then.
I’m trying to speculate on what the judges meant by Zuma’s “state of mind”. All I get back on this thread is reactionary, politically motivated rubbish since everybody has apparently already made up their minds that Zuma is guilty of corruption.
Ok – my last comment is awaiting moderation ?
The way I understand it is that bribery is a bilateral crime. This means it involves someone taking the bribe and someone paying the bribe. If one party is guilty, the other party is automatically guilty (someone with legal know-how please correct me). Thus, Zuma is already guilty of accepting a bribe. From reading the Shaik rulling, I gathered that the courts now have to decide Zuma’s state of mind. The way I understand it is that state of mind here refers to whether Zuma knew he was being bribed in order to use his influence to Shaik’s advantage.
In other words, he’d be more guilty if he knew about the half a million a year and the fact that the money came from tenders who weren’t meant to get the tender but now suddenly appeared on the short list. He’s already guilty of being bribed, but he might be less guilty if the courts found that he did not act the way Shaik wanted him to, for instance.
Is my interpretation correct?
Garg Unzola // Jan 28, 2009 at 8:29 pm
Right on Garg. That brilliantly argued mishmash of convoluted and confused balderdash succinctly summarizes what PdV and the anti-ANC bloggers here are trying to say.
Lol, that ‘brilliantly argued mishmas of convoluted and confused balderdash’ is actually the law as I understand it…although the element of intention is also critical. Although it’s a bit of a stretch to say that Zuma was blatantly unaware that this was a bribe, based on what I’ve seen in the way of evidence being offered, presuming that it holds up.
So Ozone what you’re saying is that the law is confused balderdash, if I can get to the bottom of our somewhat contradictory (in terms of english) statement?
Sorry…the bottom of YOUR (not our) statement…damn typos…