Correct.

“The NPA’s persistence in pursuing its substantive striking out application directly brought this about,” Hulley says in his Constitutional Court papers.”

Harms stated that Nicholson should have struck those allegations off Zuma’s founding affidavit on demand of the NPA because they were irrelevant. According to Harms, Nicholson spend to much space in his judgment on the reasons why he would not strike them off. On purely technical legal ground Harms appears to be correct : but I think Nicholson may have had justice on his mind.

However, I’m not sure that I see the point – even if Harms was a terrible judge (imagine, for example, that he was inclined to grant litigants he was moonlighting for permission to sue his colleagues – shock horror gasp), he sits on a bench with four other judges precisely to ensure that the possibility of a mistake is mitigated as far as is possible.

To say Harms made an error in the judgement under discussion would be to imply that the full bench of the SCA all came to the same erroneous conclusion as him, and I cannot fathom that. Again, I refer only to SCA judgements, specifically the recent Zuma judgement, which was decided by Harms and the other 4 judges.

Furthermore four other SCA judges (I will not mention the racial break-down) concurred with Harms DJP. Would’nt one have expected, at that level, that, if Harms DJP was totaly out of line, and we should’nt even debate whether he has higher aspirations – because he would be dumb if he has, at least one of them with a higher calling would’ve dared go against him, albeit only to say that some of his criticisms were unfounded.

If you imply that Harms missed the point, dropped the ball, or anything to that effect, you’re actually saying that five very astute legal minds buggered it up…something I find difficult to believe.

‘But the term ‘prima facie evidence’ has more than one connotation and may mean, as Mr Ngcuka conveyed, that there may be evidence of the commission of a crime which is nonetheless insufficient to satisfy the threshold of a reasonable prospect of success, especially if regard is had to the burden of proof in a criminal case.[44] Although corruption involves two persons, the fact that the one may be guilty does not mean that the other is also guilty because the intention of each party must be decided separately, and evidence that may be admissible against the one may not be admissible against the other.[45] In other words, the fact that Mr Shaik was found guilty does not mean that Mr Zuma is guilty.”

Yet – from Ngcuka’s affidavit quoted in the Nicholson judgment:

“Bribery, as a common law offence, or in its statutory form, under the Corruption laws, is a bilateral offence. It cannot be committed by a person alone. In the papers reference is made to an affidavit in prior proceedings by Mr Ngcuka in which he says ‘At the time when I prepared my announcement, I was in possession of a draft indictment against, inter alios, Schabir Shaik. In this indictment, reference was of necessity made to his relationship with [Mr Zuma] and the bribe agreement with Thetard. This indictment spelled out, far more eloquently than my statement, what was clearly a prima facie case of corruption against [Mr Zuma].’”

Harms suggesting, nay speculating, that Ngcuka, a lawyer by profession, is not being clear or may be using the term sort of loosely when he uttered the words “what was clearly a prima facie case of corruption” ?