It is always nice when one is proven to be correct. After the Nicholson judgement, some readers of this Blog issued rather cataclysmic condemations of myself and others and suggested that we were stupid and uninformed for having predicted that section 179 of the Constitution (read with the relevant sections of the NPA Act) did not give Mr Zuma the right to make representations to the acting head of the NDPP before he was charged.
Now I see the SCA decision entirely agrees with the approach advocated by myself and others. Apologies from all those who impugned my integirty might be in order. But I am not holding my breath.
As the SCA pointed out (and as I have consistently argued) the power to review, set out in section 179 of the Constitution, can only be an ‘apex’ function. In other words, it can only be a function of the head of the NPA as head of the NPA. Section 179(5)(d) accordingly deals only with the review of a decision by the ‘relevant’ DPP – it does not include a reconsideration of the NDPP’s own decisions. The SCA then continued:
Mr Kemp also submitted that para (d) is an empowering provision, meaning that the NDPP’s power to review decisions derives solely from its terms. The corollary of his argument is that the consultation and representation requirement applies to decisions of the NDPP or else the NDPP would not be entitled to revisit his own prosecutorial decisions. In the light of the finding in the preceding paragraph thatthe provision is an ‘apex’ provision that deals with the control of the NDPP over the DPPs, the premise of the argument falls away.
As is clear from the structure of the Constitution, the underlying purpose of the provision in section 179(5)(d) is not to protect the accused or the complainant: it is to define the procedure for the exercise of the power of control of the NDPP. According to the SCA, it would be strange to find such an important right, which is not known in comparable jurisdictions or in our common law, in a chapter of the Constitution that deals basically with structures concerned with the administration of justice and not rights. The Bill of Rights deals in great detail with the rights of accused persons, and is silent about the right to be invited to make representations concerning prosecutorial decisions.
This section was therefore wrongly latched onto by Mr Zuma’s lawyers. If they thought his rights had been infringed, they should have relied on section 35 of the Constitution. But of course the rights in section 35 only comes into play once a person actually stands trial and the last thing Mr Zuma wants is ever to stand trial – so they had to clutch at straws like this to try and keep their client from facing the very serious and credible charges on which basis Schabir Shaik is already sitting in jail.
The judgment of the SCA represents a stunning victory for the NPA as it also vindicates the much maligned decision by the NPA to ask for a striking out of passages from Mr Zuma’s papers in which he mutters darkly about the political conspiracy, which Harms (for a full bench of judges from the SCA) calls “completely irrelevant”.
Most of the allegations were not only irrelevant but they were gratuitous and based on suspicion and not on fact. The excuse for including them was unconvincing especially in the light of the disavowal of any intention to rely on them. The prejudice to the NDPP was manifest. Instead of having a short and simple case, the matter not only ballooned but burst in the faces of many. There may well be reason to hold that many of the allegations were vexatious and scandalous but, once again, it is not necessary to do so for present purposes. An order on the scale of attorney and client is fully justified, especially since it is not the first occasion on which Mr Zuma has insisted on including such irrelevant allegations.
So, does the SCA judgment also represent a vindication of Thabo Mbeki? To some degree it does, because it found that the reasons for which he was fired – namely findings of a political conspiracy to prosecute Mr Zuma – was wrongly decided by Nicholson. Mbeki was therefore fired for reasons now rejected by the SCA.
At the same time the SCA – unlike cowboy Nicholson – is careful to point out that it does not have sufficient evidence to make a finding on a political conspiracy and in any event even if it did, this would not be relevant for the case brought by Mr Zuma. The judgment will thus be read by many as a rejection of the political conspiracy findings of Nicholson J – but such a finding is not made because the court said it was not proper for it to delve into these issues. We still do not know definitively whether such a conspiracy existed or not. If we follow the logic of Mr Zuma and his backers (”innocent until; proven guilty, remember!) we cannot find the NPA and Mbeki guilty of this conspiracy because they have not been found by a court of law to have engaged in such a conspiracy.
It will be interesting to see how the ANC and Mr Zuma react to the judgment. Are they now going to resurrect the rhetoric of counter-revolutionaries? Can they afford to do that with an election coming and COPE breathing down their necks? Given the fact that they embraced the Nicholson judgment and said much about their respect for the judiciary an attack on the SCA will come accross as the most callous and opportunistic kind of political move. Surely even the Gwede Matashe’s of the world are not stupid enough to throw away their last bit of credibility with the thinking population of South Africa? Now, Julius Malema on the other hand . . .
PS: This post was slightly edited. I am travelling in the USA and had to type it rather fast so there were many typos. Apologies.
Prof., you critisized Nicholson, yet you want us to be silent about the open secret of the hatred the SCA and CC judges habour fro Zuma, dont try to preempt our justified reaction.I for one expected the SCA to rule in this manner, remember these cowboys, aka Crowie, falsely upheld that there was a generally corrupt relationship between Zuma and Shaik whereas Squires J had not so found!
Why should we now believe in their supposed impartiality when we know their bigotry!
Pierre:
From the Harms judgement:
“[54] It is necessary to stress that the NDPP never refused to afford Mr Zuma a hearing. Mr Zuma knew from June 2005 that he was the subject of an investigation. He was soon thereafter served with ‘interim’ indictments. He had been told in the Ngcuka press release that he could make representations under s 22(4)(c) of the NPA Act and that the NDPP was duty-bound to consider them. He did nothing of the sort.”
I’m baffled by that statement. What does Harms mean by the “Ngcuka press release” Does he refer to the notorious 2003 Ngcuka press release ?
Another problem with the wording of the Harms judgment which I find rather spiteful and vindictive.
“Mr Zuma expressed his dissatisfaction with this statement because, he said, it carried the gratuitous and offensive imputation, which he had to endure, that he was corrupt but had covered his tracks. Apart from this, Mr Zuma, as appears from his founding affidavit, was quite pleased with the announcement. Indeed, in his replying affidavit he made it clear that it was common cause that ‘after extensive and thorough investigations’, Mr Ngcuka and his deputy, Mr McCarthy, ‘took a carefully considered decision’ not to prosecute him.[4]”
That is grossly unfair to Zuma. Clearly Zuma would be pleased if Ngcuka’s own admission was that he didn’t have strong enough case – i.e. circumstantial evidence. What Zuma objected to was Ngcuka stating he had a “prima facie” case in the media – creating a public impression that he was indeed guilty.
ozoneblue – Jan 12, 2009 at 3:53 pm
Aparently, yes, the Ngcuka statement referred to is the notorious 2003 one. Reference thereto resurfaces in para [78] of the judgment
“[78] It is to be noted that Mr Kemp scuppered the case as presented to and found by Nicholson J. He no longer sought to rely on the Ngcuka announcement or on the Hulley/Mpshe correspondence as having created any expectation because, as he said, he could not point to any representation in them. To indicate how valueless the Ngcuka announcement was for purposes of extricating from it a promise to invite representations, it is worth quoting:
‘We have never asked for nor sought mediation. We do not need mediation and we do not mediate in matters of this nature. However, we have no objection to people making representations to us, be it in respect of prosecutions or investigations. In terms of section 22(4)(c) of the [NPA] Act, we are duty bound to consider representations.’
As said, Mr Zuma never purported to make representations under the NPA Act.”
Hope that satisfies you and removes the ‘baffle’?
So why would Zuma want to make “presentations” to the NPA in 2003 when Ngcuka said he was not going to prosecute him ? If indeed as Harms put it in just the previous sentence “Mr Zuma knew from June 2005 that he was the subject of an investigation.” Perhaps I’m bit obtuse but it just doesn’t make any sense.
ozoneblue – Jan 12, 2009 at 5:02 pm
“Clearly Zuma would be pleased if Ngcuka’s own admission was that he didn’t have strong enough case – i.e. circumstantial evidence. What Zuma objected to was Ngcuka stating he had a “prima facie” case in the media – creating a public impression that he was indeed guilty.”
That’s just saying what the SCA said in other words, namely that he was dissatisfied with one part of the anouncement, but satisfied with the outcome. Nothing grossly unfair about that.
ozoneblue – remember according to Zuma’s own papers (which we once studied from the friendsofJZ website in another blog eons ago – I think Bongs and I were involved in heavy argument there), Ngcuka had at the very same occasion said that the NPA might have to reconsider its decision not to prosecute JZ at a later stage (after the Shaik trial and if some new evidence came to the fore). So JZ new, from there onwards, that investigatios against him were ongoing, and there might be a stage that he might want to make representations to make the whole thing go away. Fact is, he knew about his right to make representations in the ordinary course of events, like it happens every day when decisions are made to prosecute. He did not pursue that avenue. Probably because he does not really have a valid defence against the allegations leveled against him. To the contrary, he decided to say that, because he was not ‘invited’ to make representations when the last two decisions to prosecute (first by Pikoli, thereafter by Mpshe) were reached in terms of s 179, the decision to prosecute him was procedurally incorrect. In that argument he has now dismally failed.
@ MDU
I find it hilarious that you mention the SCA judges habouring a hatred for Zuma……almost as if Zuma has endeared himself to every one…..Zuma’s own conduct has caused this entire fracas….amazing that almost 100% of discussions regarding Zuma are about his behaviour…almost as if we discussing a dilinquent child….I have always been a fan of Mr Zuma, but the truth of the matter is that the Nichlson judgment even if it was correct delivered justice to Zuma at the expence of the country. The merits were never tried and it is about time that some one’s ass is deep fried for all the mokey tricks that has been going on.
If Mr Zuma is so innocent, why is he not looking forward to his trial day in an open court?
Judge Harms is against inferences but he makes the same mistake about Mbeki being fired because of Nicholson’s Judgement. It is very ironic that he assumes without fact! We need a restart!!!!! JZ should now reverse and make Mbeki a respondent, then we see the outcome.Also add Maduna and Ngcuka.Then include Pikoli’s response and Ginwala findings.
Paul Brislin, give it up, that question is never going to get answered in public, because the only logical answer is that he knows he’s bollocksed if he actually ends up in court.
The SCA has done a great service to the judicial process by upholding the law, purely the law, and nothing else. While Judge Nicholson no doubt gave his best effort, he himself acknowledged the possibility that he had fallen short, and so granted the NPA the right to appeal. The important thing here is not so much that Nicholson got torn to shreds by the ruling, but the fact that the SCA acted with the interests of the law at heart, and nothing else – a sane, legal and to-the-point verdict was delivered, devoid of any political speculations. This proves that in spite of the immense criticism that will be thrown their way, those judges are strong, and have integrity.
Viva the SCA, viva!
The shocking thing about this all is that our president was removed literally the day after Nicholson’s judgement. Granted in this instance it was for the best, but it’s frightening that the ANC thinks that it is beholden to itself only, and can act in such a manner.
What happens if JZ is found guilty? I’ll put money on it that if that day ever comes, and I’m alive to see it, JZ will not be removed as president, because there will be an appeal, and another appeal, and another appeal…
This is off-point, but I wish the ANC would realise that the president of the country serves the whole country, not just the ANC and it’s members.
But Viva the SCA viva!!!
Instead of slagging off Judge Nicholson, we should all – yes, all of us – be deeply thankful for what his judgement has done for democracy. Without it, COPE would never have come into being, which means the ANC now has to try a whole lot harder with some real opposition breathing down their necks. Viva competition.
If someone like me that is not a legal expert (in fact I work in IT) can see Judge Nicholson’s judgement as being wrong does it not beg the question: is he A, incompetent or B, trying to get in the ANC’s good books to further his career??
Option A is off course easy to dismiss. The Supreme Court of Appeal (SCA) judgement seems to imply incompetence, especially with the whole section on “The Judicial Function” which can be interpreted as the SCA saying “oh by the way, this is how you are supposed to do your job.” I found Judge Harms’ comment “…and in the course of this discussion he changed the rules of the game, took his eyes off the ball and red-carded not only players but also spectators” hilarious and quite sarcastic.
Calling Judge Nicholson a conspiracy theorist is probably not a compliment either, if you look at your usual suspects of conspiracy theorists they are usually right-wing middle Americans with a long history of inbreeding.
But, keep in mind Judge Nicholson is a High Court judge, Judge Lewis and Cameron’s comments about quality judges aside, that still means you are not a complete idiot (of course ‘Judge’ Hlope is the exception). I cannot think that a judge of the High Court can be so incompetent that it would spark such a colourful rebuke/scathing attack from a unanimous SCA. Even I would do a better job!
So the only conclusion that I can come to is that Judge Nicholson was trying to advance his career. He ruled not on the matter at hand but rather what the Zuma/ANC camp wanted to hear. Big emphasis on “wanted to hear”
George Gildenhuys – “Even I would do a better job!” …
Had South Africa still been functioning with a Jury System, you would’ve been the guy (or, at least, one of them) one would’ve liked to see on the jury.
However, Nicholson J’s appointment to the Bench was in the first instance promoted by his history of having established a proper legal Aid office in KZN, you know, the typical ‘human rights guy’. No wonder Kemp J Kemp got him so easily side-tracked on a so-called ‘human rights issue’ especially involving the highest political (not public) office bearer in the country. So, cut the guy some slack. He is not totally incompetent as a judge, neither did he lobby for a higher calling under the new ANC leadership as you imply; but, given his history, he should not have been assigned such a serious and high profile criminal matter to hear. Herbert Msimang, well, I think he also kicked for touch at the time. Like Cameron JA (to be CC judge) said, we need tough judges who can make tough decisions in tough times. There are one or two (relatively young) judges of colour (not necessarily black or white in the true sense of the word) in KZN I think would have made much better appointments to hear the case than Msimang or Nicholson. So, Vuka Tshabalala JP, vuka and identify the right person for the job so that, for once and for all the case can be laid to rest.
Clara – So, Viva la revolution!, has now become, Viva la competition!
George Gildenhuys – “Calling Judge Nicholson a conspiracy theorist is probably not a compliment either,”
Especially after everyone who doubted the Harms commission findings (or rather non-findings) into Apartheid death squads in 1990 were also branded “conspiracy theorists”.
Conspiracy…..This word is used so often these days, especially in the same sentence as Judge Nicholson. In my opinion Judge Nicholson is now unfairly torn to pieces. When he agreed to sit on the bench to judge the Zuma case, he knew he signed the death sentence to his own career. Who can say for sure that he was not “silently” threatened by the Zuma mob? It is possible that his life was threatened, or the lives of his close family. (ref. MAL-ema) Even worse, it might have even been suggested that should he rule against Zuma, he’d be the cause of plenty bloodshed to follow and have his conscience to live with. Perhaps it is just another conspiracy, but I feel heartache for him. I have no doubt in my mind that he very cleverly acted in the best interest of his own family and his own life. Perhaps not in the best interest of his fellow South Africans (and their tax money), but Nicholson is no fool, he knew the case would continue to the SCA. He was alone in Pietermaritzburg the SCA has five judges. The SCA has shown the world and overseas investors that there is still law in South Africa.
Anonymouse // Jan 12, 2009 at 5:46 pm
Sorry my friend, this is what Harms said in his judgment: “Mr Zuma knew from June 2005 that he was the subject of an investigation.”
A link to the original Ngcuka press statement that Harms is referring to would be much appreciated.
George Gildenhuys // Jan 12, 2009 at 9:05 pm
“if you look at your usual suspects of conspiracy theorists they are usually right-wing middle Americans with a long history of inbreeding.”
Yes, come to think of it, where is our very own Sarah Palin? And z too? Still on holiday?
ozoneblue // I am sorry if I did not define my take on your typical conspiracy theories as those nut cases saying the Queen is in fact a lizard from outer space and that gravity is a CIA invention… I read Harms comments on Nicholson in that light.
Furthermore I do not know Judge Nicholson’s full history, as I have pointed out I am not a legal expert or professional. What I did do was read the entire Nicholson and SCA judgement and the whole Nicholson judgement just sound a little but too much like a script from the ANC.
I might be wrong; in fact I really really hope I am. Judges making rulings based on politics (as Harms has pointed out) makes me very nervous.
“Waar daar ‘n rokie is, is daar ‘n vuurtjie” – is all I am saying really…
George, I think one must be careful to impugn the integirty of judges. In the absence of proof it is not wise to speculate about the motives of a judge as it might undermine respect for the independence of the judiciary. Judges often differ and higher courts often reverse lower court decisions and do so by using sometimes scathing language. That does not mean the lower court judge acted improperly. Nicholson might have been misguided, but I often think judges are misguided without thinking that they might have had an improper motive. They might just be stupipd or uninformed or had a bad day at the office….
Prof I hear what you are saying. And I agree that that we should not make unnecessary allegations about Judges (or for that matter anyone). I accept that judges make mistakes like the rest of us on a daily basis (my Calvinist guilt kicking in now) and that higher courts frequently corrects this. In any other profession (can I am excluding the Dept of Home Affairs here) if you underperform you get sacked. Why not judges??
If I may point out Judge Kgomo’s disaster in the Le Grange case (Le Grange v The State (040/2008) [2008] ZASCA 102), that was a serious issue that could have destroyed a man’s life. Things like this should not be left at some strong words from the SCA; Judges that makes serious mistakes should be put on probation like in any other profession when you screw up. Obviously there are levels of screwing up.
All I am saying is that the Nicholson judgement just sounded too good for Zuma, not only did the charges get dropped but he went way outside of his remit and commented on politics as well and I very much doubt our quality of High Court judges has not dropped this low (Kgomo and Hlope excluded of course), hence me jumping to the political conclusion.
Like I have said, I really really hope I am wrong and the learned Nicholson J had a bad day…
Me, making unfounded allegations about the judiciary make me a conspiracy theorist as well… I did not think this through did I?? I wonder if my mom is also my cousin??
george gildenhuys – “Waar daar ‘n rokie is, is daar ‘n vuurtjie” – is all I am saying really…”
Which comes back to the question I posed on the other thread : how does the NDPP decide which cases to investigate and which cases to leave.? Given that he reports to the minister of justice who reports to the state president. Lets say for example he found “prima facie” evidence that either of those two were involved in corrupt activities, or the president advises him that there are “threats to national security” which necessitates investigations into a particular issue to be called off ?
Why was the BAE arms deal never touched until late December last year, after Mbeki got fired, when the Scorpions all of a sudden and out of the blue raided certain local BAE agents ? Why was the SAAB deal never investigated? How about the ThyssenKrupp deal? Despite serious allegations in the De Lille dossier, Andrew Feinsteins book, and ongoing SFO investigations in Britain, Germany and Sweden into those very same deals ?
You can call people like Nicholson and myself “conspiracy theorists” – I honestly don’t care. They called me such ugly things way back in 1990 too.
ozoneblue – I am not calling you a conspiracy theorist, calm down. All is ok.
I did not call Nicholson a conspiracy theorist either. A full bench of the SCA did. I just made a humours (perhaps inappropriate) comment on what my idea of the phrase is. I apologise if I offended you.
What Harms did point out is whether there is political interference behind the prosecution of Zuma or not, it is irrelevant. The court has only to decide if the NPA was allowed to charge him, not why.
By the way, Tony Blair stopped SFO investigations into BAE very quickly when they came too close to Saudi corruption…
Also the NPA does not find evidence. The Police do. it is up to the police to gather evidence and present them to the NPA, the NPA then decides to continue a prosecution or not.
For once I agreed with the ANC, having the Scorpions as part of the NPA blurred the lines between prosecutor and investigator. These are best left separate; it also makes the political target smaller.
Mdu
Let’s not hide behind the words. While it is true that Judge Squires never uttered thos words, his judgement implied it.
Here is an excerpt of what Judge Squires said: “…and even if nothing was ever said between them to establish the mutually beneficial symbiosis that the evidence shows existed, the circumstances of the commencement and the sustained continuation thereafter of these payments, can only have generated a sense of obligation in the recipient…”
This, Mpho whether you like it or not, implies an existence of a generally corrupt relationship (mutually beneficial symbiosis …a sense of obligation in the recipient) between Zuma and Shaik. And then there was the fax (smoking gun) …
ozoneblue, you ask some good questions. The Scorpions chose to investigate some politicians and not others. Why? Of course, this does NOT mean that those investigated and charged – like Zuma – do not have something to answer for. It merely means others got away. This is where I do not understand the logic of Zuma’s supporters: If he was signalled out for investigation, that does not necessarily make him innocent (only a court can decide on that), it merely shows others might ALSO be guilty. So if one believed in justice one would not argue for the prosecution of Zuma to be stopped but for others ALSO to be investigated and prosecuted with the same vigour. Otherwise one is saying ANC members are above the law and must never be investigated and charged with corruption which would be a rather unfortunate position to take. Or not so?
Sorry Mpho, I meant Mdu.
My bad…
To: Pierre de Vos and ilk
Retsrov // Jan 12, 2009 at 10:06 pm
George Gildenhuys // Jan 13, 2009 at 12:05 am
Pierre De Vos // Jan 13, 2009 at 12:24 am
Again, I say there is proper reason to suspect Lizeka Mda article touched on the truth, a lot more, than the owner of the blog was willing to acknowledge.
If one is to accept that a view, such as Lizekas and Restrov, impugns on a judges reputation, then the natural question is; how much can judges get away with? what remedies are there, to punish judges that are either incompetent or deliver corrupted judgments. In the previous sentence, I have substituted the word ‘influenced’ with ‘corrupted’ simple because, at the core, that is what Lizeka and , to a more limited extent, Restrov George are suggesting.
Another point of consideration here is that Judge Tshabalala, the man who appointed Judge Nicholson to reside on the Zuma NPA matter, received shares from Tokyo Sexwale, a known Zuma ally. The fact that those shares were returned cannot constitute a break, or change, in the relationship that saw the shares being traded in the first place.
Now I am not saying that the Nicholson judgment was influenced, directly or indirectly. All I am saying is that the possibility of such cannot be cast aside. And Pierre should stop trying to tell us that the integrity of judges cannot be impregnable, and ask for proof, when he did not do the same on the Judge Hlophe issue.
Pierre de Vos and ilk
Retsrov
George Gildenhuys
Pierre De Vos
Again, I say there is proper reason to suspect Lizeka Mda article touched on the truth, a lot more, than the owner of the blog was willing to acknowledge.
If one is to accept that a view, such as Lizekas and Restrov, impugns on a judges reputation, then the natural question is; how much can judges get away with? what remedies are there, to punish judges that are either incompetent or deliver corrupted judgments. In the previous sentence, I have substituted the word ‘influenced’ with ‘corrupted’ simple because, at the core, that is what Lizeka and , to a more limited extent, Restrov George are suggesting.
Another point of consideration here is that Judge Tshabalala, the man who appointed Judge Nicholson to reside on the Zuma NPA matter, received shares from Tokyo Sexwale, a known Zuma ally. The fact that those shares were returned cannot constitute a break, or change, in the relationship that saw the shares being traded in the first place.
Now I am not saying that the Nicholson judgment was influenced, directly or indirectly. All I am saying is that the possibility of such cannot be cast aside. And Pierre should stop trying to tell us that the integrity of judges cannot be impregnable, and ask for proof, when he did not do the same on the Judge Hlophe issue.
Pierre De Vos // Jan 13, 2009 at 2:16 am
Then you would agree – that on the face of it there are so many unanswered questions, contradictions and inconvenient truths regarding the arms deal and taken with the way that Judge Heath, Andrew Feinstein and Gareth Woods got taken out one could ague that Nicholson : far from being a “conspiracy theorist” indeed had the public interest at heart when he called for an independent inquiry into the rams deal. But what does judge Harms do, he is scathing to the point of using loaded terminology like “conspiracy theorist” clearly intended to discredit the Nicholson judgment and then he makes the following statement : “Whether or not one agrees with these sentiments is beside the point. The point is that those personal sentiments concerning a political decision were, in the context of the judgment, unwarranted.”
So were respected leaders like Tutu and De Klerk amongst others see as in public interest”: Harms brands a “personal sentiment”, as “conspiracy theory”. Clearly Nicholson made mistakes – the biggest one to do with “The court erred in its approach to striking out applications.” and “The court below imposed an onus on the NDPP to prove a negative. This appears from the finding that it ‘was not convinced that [Mr Zuma] was incorrect’ in relation to political meddling (para 216). ” What Nicholson found was that he was “not convinced” that there was no political meddling, therefore refusing to strike certain statements from Zuma’s affidavit as the NPA insisted: Harms over-reacts in his judgment by implying that Nicholson in fact said he did find evidence of tampering or found certain certain individuals/parties guilty of meddling. So he could simply have said that Nicholson overstepped his authority and that his findings were irrelevant : but instead Harms in fact makes himself guilty of doing exactly what he accuses Nicholson of doing : pontificating and speculating at length on issues such as why Ngcuka, a lawyer himself, may have misappropriated the word “prima facie evidence”.
I say the lady doth protests way too much. Is Harms not perhaps trying to scuttle any further investigations into the arms deal ?
Harms correctly states : “Judges as members of civil society are entitled to hold views about issues of the day and they may express their views provided they do not compromise their judicial office. But they are not entitled to inject their personal views into judgments or express their political preferences. To illustrate the point I intend to refer to some instances where the court below in my view overstepped the limits of its authority.”
So – when judge Van der Merwe found amongst other things in Zuma’s rape trail that Zuma should not have had sex with a much younger women than himself – a peculiarly personal moral judgment or that he found it unacceptable that Zuma had unprotected sex – a finding which in the context of the HIV/AIDS problem has to be read as in public interest : what did that have to do with the “material issues at hand” i.e. whether Zuma committed the crime of rape or not?
Thank you ozoneblue for the above elucidation.
I just wanna add that yesterday’s ruling achieves nothing because as we speak Zuma’s, ANC’s and NPA’s legal teams are involved in negotiations about representations of Mr Zuma.
I bet you after repesentations, the new NDPP will, like Ngcuka, rule that there is no case for Zuma to answer, as indeed there is isn’t, and you can thereafter talk until you are blue in the face, watch this space.
Your transient victory means nothing!
Thankfully we finally decided to let teh course of justice takes its required path. The original judgement by Nicholson and his subsequent comments made a mockery of our legal system.
Judge Nicholson said after the recall/firing of Mbeki that “I never realised the implications of my judgement”. Now any half brained intelectual woudl have realised the intentions behind the appeal and the results that would almost certainly be the fallout. Nicholson is supposed to be above average intelligence and as such shoudl have been fully aware of what was happening around him. If he was not aware then is suitability and capability to be a judge shoudl be assesed.
@Mdu
The decision handed down by the SCA is of extreme importance.
Firstly ,it demonstrates that our judiciary is still intact, independent and robust. Its not gonna play the silly game that these corrupt politicians are playing at. Nicholson did over step his mark as a judge. In this dirty game there is simply no room for heros.
Secondly, that the rule of law is still to be observed by all. No one is above the law. Corrupt politicians will be brought to book.
Thirdly, its Mr Zuma’s constitutional right to have a fair trial, not tainted by cheap political drama. If he is found to be guilty, or plea bargained so…a tough punishment should be imposed, as this would serve as great deterence to others.
Prof – “They might just be stupipd or uninformed or had a bad day at the office….”
In other words, there might be a kernel of truth in the saying, “the law is what the judge ate for breakfast”?
Mdu – Jan 13, 2009 at 9:43 am
Why are the ANC’s legal eagles involved with Zuma’s own in the talks to the NPA? Does the ANC, as organization, have something to hide? Nevertheless, Zuma’s legal team had been speaking to the NPA since this weekend already. In other words, they have been talking since before the judgment was handed down. All this could mean is that Zuma ad his legal team are very, very worried. The NPA, even if there were politrical meddling in its decision, would never take a case to court without evidence, especially someone with the stature of JZ. The risks are simply too great. Look what happened to Pikoli in the Selebi saga, even though a panel of experts later decided that there is a case for him to answer. My bet is, if the NPA suddenly decides not to continue with any of the charges against Zuma, it would be as a result of political (not legal) pressure, and then I, for one, will lose my trust in the criminal legal system of our beloved country. For the same reasons I am against a plea bargain and sentence agreement that would keep JZ out of prison just so that he can rule as President. The best thing for Zuma, for democracy, for the rule of law, and for South Africa as a whole would be: (1) Zuma must stop his nonsensical pre-trial applications, including going to teh CC, as he will get nowhere – only waste taxpayers’ money. (2) Zuma should voluntarily step aside as the presidential candidate and focus on his trial – if he is acquitted before the next elections, some means or the other could always be found to get him into the President’s office (a recall of Mothlanthe perhaps?). (3) Zuma should face his day in court and, if he could point fingers of guilt to others who were not investigated, so much the better. If he is not guilty, he will be acquitted. If he is guilty, however, he deserves being sent to gaol and not becoming President, even if there are others that might be just as (or more) guilty than he.
ozoneblue – I think Harms DJP’s statement, read in context of the judgment as a whole, means the following: (1) Zuma knew from Ngcuka’s statement in 2003 that he has a right to make representations should he be investigated again after the initial decision not to prosecute him alomngside Shaik. (2) Zuma knew from 2005 (under Pikoli’s reign) that he was being investigated again. (3) Despite that, he has never to date approached the NPA with a representation on the merist of thye matter. Unfortunately, I cannot quickly provide you with a link to Ngcuka’s 2003 statement. If you log into Friendsof JZ’s website, however, you will find the whole statement as part of JZ’s affidavit and papers that were presented to Nicholson J. Those are the papers that Harms based his decision on – remember, he himself said a court may not go outside the papers in a case like this. Hope that helps.
Thanks for that in-depth analysis Mdu.
However, yesterday’s judgement does actually mean something. For one Zuma will actually have to pay for the legal fees incurred during the trail. Furthermore, it also means that the happiness, joy, elation, inner peace and euphoria you felt after the 12 September 2008 Nicholson ruling meant nothing. The slating of counter revolutionaries, journalists, cartoonists, opposition parties by Zuma, Vavi, Mbete, Malema and Co has basically been quashed.
And don’t worry, I will “watch this space”. I find it very entertaining to read your comments which elude understanding of the constitution and are entirely based on your association with the ANC.
Mili very nicely done
Mdu- i think the way you carry on and how all of a sudden our constitution and high courts are counter revalutions is a worring sign as your mentality goes to show the ANC mentality when things dont go your way.
wether you like it or not Zuma is a charged man however that seems to mean nothing to you. My man he cant keep running away from the courts and the only thing yet to see is if the ANC will now press for legislation to immune a president but this is doubtfull as it appears his legal team has writen to the NPA to go to court and fight it out.
Mdu please explain to me what is it about this man that has you so captivated and so blindly lead?
chris mcdaniel, to answer your question it’s very simple.
The zeal the minority of our society especially whites betrays in their hatred of Zuma because he is a true African untainted by a penchant to appease the west and the fact that he has no formal education yet a wise, not popular, leader are the reasons most sounth Africans love and will vote for ANC under him.
The fact that the white controlled media,conservative judiciary, self-stlyed scholars and analysts critisize Zuma at every turn, the same people who labelled Mandela a terrorist, endears Zuma to us the majority black people of South Africa. The more Zuma gets persecuted and peosecuted the more votes he garners for the ANC, contrary to what self-styled analysts hopes for!
Prof, what do you make of South Africa’s failure to support a UN declaration calling for the decriminalisation of homosexuality?
http://www.iol.co.za/index.php?set_id=1&click_id=13&art_id=vn20090112053650584C556189
This was particularly alarming to me: “South Africa’s ambassador to the UN, Dumisani Kumalo, suggested on December 18 that the declaration had not been signed for fear of offending African governments who opposed it.”
So instead of championing the right to equality as we do at home, on the international stage we prefer to tiptoe around the issue in fear of offending our neighbours? Grow some balls already!
mdu
“The zeal the minority of our society especially whites betrays in their hatred of Zuma because he is a true African untainted by a penchant to appease the west”
Well if that is a fact – a cynic would say that if he is found guilty he should stop eliciting bribes form those corrupt Western governments. The same goes for Mbeki with his Africanist rhetoric but quite happy to spend R40 billion on arms bought mostly, at expense of impoverished African people, from the colonial British government.
But in general I do not agree at all with your simplistic racist analyses of why Zuma is being singled out. If you read in between the lines you will realize it is all about sidelining Zuma together with his “left-leaning allies”. Mbeki – the “business friendly” darling of the “free market” world is not considered a threat to some very powerful business interests including some prominent BEE partners like Ngcuka example who is worth over 90 mil.
So what we have in fact is a resurrection of the “rooi gevaar” thinly veiled under euphemisms such as “national security”. I believe we have fringe elements of Apartheid era security apparatus embedded in the Scorpions, the police and the NIA still fighting the Cold War – thus we have the chaos that has become a hallmark of how our security and judicial establishments conduct itself.
The real problem for my conspiracy theory, however, is how and where does BEE millionaires Ramaphosa and Sexwale fit in ?
Pierre, what are your thoughts on the suggestions that the ANC will introduce a law before the upcoming elections that would give the sitting head of state immunity from criminal prosecution?
“colonial British government” ???!!!
Is your real name actually Robert Mugabe?
Unbeknown to Harms, he has just provided the ANC with another reason why the judiciary needs to be transformed! His judgment is an indictment on the judiciary as a whole. Yes, Pierre, it is not unusual for higher courts to be scathing on judgments from lower courts, BUT it is UNPRECEDENTED (a point which you somehow did not touch) that the higher court would lambast a Judge (not ONLY his judgment) that much. Adding this to Hlope’s racism report, Lewis’ controversial statements (including Cameron’s concurrence), the ConCourt’s knee jerk reaction on Hlope, Mbeki’s reckless award to Langa given the current political climate, Moseneke’s political utterences etc, an average Joe like me has to ask whether the judicial pillar is in the right hands. Only a in-depth investigation into the state of the judiciary and a transformative recommendation can help us. The second debate which I hold to be equally as important, is whether JZ could EVER receive a FAIR TRIAL???
ozoneblue
Let me enlighten you, I was responding to chris mcdaniel’s question of why I am so much captivated by Zuma and not why Zuma is being singled out,that’s your hallucination!
Secondly, I did not at all enter the realm of hypothetical situations of “if Zuma is found guilty” this and that, I was talking about a factual situation which obtains id est of an avalanche of hatred directed at Zuma, so stop attributing your misguided understanding of the current political situation to me and appropiate your delusions to yourself which would also explain why you don’t understand where Sexwale and Ramaphosa feature!
mdu
“I was talking about a factual situation which obtains id est of an avalanche of hatred directed at Zuma,”
Mdu – I’m willing to bet you if Zuma subserviently parroted the new religion of “free market” policies , liberalization and privatization instead of hanging out with the likes of COSATU and the SACP whilst advocating “populist” policies the media and the “white people who control it” would have loved him and would have championed his customary polygamy as a shining example of multiculturalism inside a rainbow nation. They would even have forgotten all about one or two indiscretions like a few tax payer sponsored holiday trips to the UAE, or the squashing of Oilgate as they did with Phumzile Mlambo-Ngcuka the darling wife of our beloved multi-millionaire anti-corruption czar, Bulelani Ngcuka.
Stones and Mdu what would be constituted as a Fair trail to you??
cos from what the rest of south africa can see is Zuma has tried to run away or block himself from having the charges against him drop, why not just have his day in court this would of been over along time ago??
I guess if the judge is white it wont be a fair trial hey?
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Secondly, I did not at all enter the realm of hypothetical situations of “if Zuma is found guilty” this and that, I was talking about a factual situation which obtains id est of an avalanche of hatred directed at Zuma, so stop attributing your misguided understanding of the current political situation to me and appropiate your delusions to yourself which would also explain why you don’t understand where Sexwale and Ramaphosa feature!
……………………………………..
lol no you intered the realm of stupidity. look your beloved god Zuma is a charged man deal with it.
Mis guided situation lol the anc recklessly recalled a president who was completely innocent ……..please explain that one for us?
I dont blame people from the ANC leaving and forming a new party at least they seem to have abit of morals.
Yes your right we dont see where sexwale and ramaphosa feature please enlighten us?
Mdu // Jan 13, 2009 at 2:50 pm
With regards to your reply to Chris McDaniel, are you actually saying that the only reason you support Zuma is because he is an uneducated, unpopular wise-ass?
Secondly, you can stop with the Zumaphobia statement. It’s not Zuma that I find frightening. I find frightening that there are people like you who believe knowledge is a colonial influence that taints the abilities of a leader. Unfortunately we have a modern society where both wisdom and knowledge are important to not only lead the people of the country but to know and understand the framework in which that country may be governed.
My view in this whole matter is that one should not allowe their ANC membership to dictate their thinking capacity to the extent that they undermine even their sence of morals.
Zuma is also human, and he therefore is not immune to making mistakes, unfortunately every mistake comes along with a price of punishment.
I think, for every Zuma fan to say he is and will remain president no matter what happens, shows that such comments are made by the party not an invidual on their independent thinking capacity.
Can`t the ANC release Zuma untill he is done and they will welcome him back when he is acquited if that is to happen?
ozoneblue // Jan 13, 2009 at 9:25 am
“So – when judge Van der Merwe found amongst other things in Zuma’s rape trail that Zuma should not have had sex with a much younger women than himself – a peculiarly personal moral judgment or that he found it unacceptable that Zuma had unprotected sex – a finding which in the context of the HIV/AIDS problem has to be read as in public interest”
When Judge Nicholson stated that he is not convinced that there is no political conspiracy against Zuma it was fine as it “could” be considered obiter dictum. Where he erred was when he used that opinion (which did not substantiated from the facts before the court), to form the reasons for his judgement.
Judge Van der merwe above in the example you give gave his opinion which did not form the basis of anything except enphasising what society believes to be displeasing. It did not contribute to his findings.
Mdu // Jan 13, 2009 at 11:56 am
My brother it might be a minority but a big minority and the number is growing everyday. By this I mean it is not just Whites who dislike Zuma but Black people as well, if we are to consider most of the opposition parties, most of whom are in fact black.
The last election the ANC got 66% of the votes with Mbeki’s face on the posters. He was fired and Cope was formed taking large parts of the Western, Northern and Eastern Cape from the ANC. With followings in Gauteng and Limpopo. I wander how many votes the ANC will get with Zuma’s name on the posters.
@Mdu 13 January 11:56am…JZ doesn’t appease the “West”? If I recall he just did a whole big tour of Britain and America, reassuring the politicians and captains of industry there that things would not change drastically…
Open your eyes brother, and see the full picture. Or is it not “appeasing” (interesting choice of words – I’m not actually sure what the West is so upset about that it would need appeasing) the West when JZ does it, only when opposition parties say things about foreign policy?
Also, not having an education is not something to be proud of if you’ve had the opportunity – and JZ has definitely had the opportunity to study a bit since 1994 (that’s 14 years – he could’ve completed a high school matric and done a political science degree since desegregation!). The fact that you feel it is acceptable not to have any formal education when running a country paints a scary picture for the future.
@Setumo…just who’s hands is the judicial pillar in (to use your wording)? Hlophe wrote a report on racism, but lets not forget, this is the same judge who thought it was acceptable to grant a company he was receiving money from leave to sue a fellow judge – and now there are allegations he tried to influence the ConCourt. Oh, this chap is the Judge President or something? I’d say he has a fair influence on the judiciary, so perhaps you’re correct…we do need to get rid of some bad apples!
And the asnwer to your second question depends on whether you’re a typical ANC member or a rational thinking member of society. If you’re the first, the answer is no, he will never get a fair trial, even if God himself was judging. If you’re the second, then the answer is yes.
When will you loyal ANC cadres start realising that people don’t HATE Zuma? We just don’t like the fact that our future president (a) thinks he is only answerable to ANC members, even though he will govern all of us, and (b) is facing corruption charges of considerable proportions and keeps doing everything he can to evade trial (even though we’re assured he’s innocent).
From what I hear he’s a charming, warm and friendly man in person. I don’t hate him – I just think that it is a sad indication of the ANC membership’s collective IQ that they think he is the best candidate to run this country.
The Big Slipper // Jan 13, 2009 at 7:07 pm
@ Big Slipper
…..14 years – he could’ve completed a high school matric and done a political science degree since…..
LOL
You really believe he could’ve ?
(maybe get a G+ for woodwork)
Mr. De Vos : I suggest you refrain from criticising the Nicholson jugdement. He no doubt knew that his decision would be overturned on appeal.
Nicholson nevertheless raised the “conspiracy” issue in an attempt to bring out from the domain of speculation – furthermore he may rightly have referred to the conspiracy issue as a “cancer” infinitely greater than the “arms deal”.
Recall also the political climate under which the Nicholson judgement was made.
What would have been the effect if Nicholson had ruled as the SCA have judged ?
How would an NPA appeal on such a judgement be viewed ?
Mr. De Vos, kindly refrain from describing the Nicholson judgement ito “cowboy”.
Prof: Why must i trust these Judges. Isn’t Judge Louis Harms the same judge who declared in his findings that there was no third force and police and army death squads even though the police and hit squad members admitted to killing and destabilising the country.
I am not judging his judgment in this case, all I am saying can we really trust this judge? He could not see the obvious and now we feel he is a fair judge.
What worries me about the overall comments on Nicholson J’s findings and SCA ruling is that the focus has shifted away from the question of law. What comes across is people’s preference of the two judgments. As a lay person all I am interested in is which of the two is sound. Where have the judgment (s) failed and what lessons can we draw from them?Also do the two judgments show a worrying trend of a judiciary in peril which is actively becoming shamelessly political or perhaps the one judgment was a remedy attempting to reverse that trend? Furthermore the expectation that every choice of words contained in the judgments should be the subject of the debate when normally use of words is subjective is rather unhelpfull. Instead this train of thought prevents us from learning from each other. Another problem is some of the arguments are down playing the consequences of these judgments. The Nicholson J ruling was a catalyst to, amongst others, the sacking of a sitting President, resulted in the birth of a political party and an extension of a notion that our political landscape is at best a mechinery for conspiracies. The SCA ruling has heightened apprehension for the ruling party on the way forward, provides opportunity for other political parties and some measure of vindication for the deposed king.Therefore it is incumbent upon all of us to properly interrogate the facts while confining our arguments within the ambit of the law. However this should not restrict but nudge us to elevate these debates to the level where our society in general can use them to make sense of the law. The issue of trust around the judges own conduct must be pursued without resorting to the common refrain of attacking the person of a judge. It should rather be their application of the law & reason on a particular matter that we must hold them to account. Following from this it is correct and must be encouraged that we should all advance opinions either for or against any judgment where we feel some aspect or the entire judgment warrants such attention. In this regard the manner in which Nicholson J granted the NDPP leave to appeal is proof that he was of the opinion that another court would come to a different conclusion and it would be absurd to hold the SCA in contempt for doing what was expected of them. The delivery of these judgments has evidently irked even the most astute amongst us and as such left us wanting and not any wiser in matters of the law. But most glaringly it seemed to have improved the intolerance level towards each other.
But hey!
My take might also be off the mark that it warrants no response. Some might feel it comes across as me being too self righteous that it can be red carded for adding no substance to the ongoing debate.
I thank you!
@Thomas,
I would like to clarify that when Louis Harms Delivered the Judgment, He was after all acting also on behalf to those other four Judges, who then concured to his Judgment.
At this stage it can`t be said that it is a Harms Judgment but an SCA one.
Therefore under the circumstances, in my view, there is no real reason to paint the Judgment with only one Judge`s ……..
I am not painting it as his judgement, but indicating that he was one of the Judges. If I can’t trust one of the Judges what makes me trust the rest of the Judges?
This unfortunately is the same Supreme Court of Appeal (SCA) which dismissed an appeal by Shaik by quoting media articles that there was “generally corrupt relationship” between Mr. Zuma and Shaik and attributed them to a High Court Judge.
Trust the judges to do what?
Clearly, Judge Harms did not concoct the SCA ruling out of thin air and bias towards Zuma. He had a panel of experts who unanimously agreed with the ruling, he just delivered the ruling.
Does everyone know what unanimous means? It means if you don’t trust Harms, you don’t trust either of the judges concerned, because they all agreed with that ruling.
Don’t question motives, look at the facts.
Garg Unzola:
Trust the judges to do what?
To give an unbiased Judgement and not a political judgement.
I ask you again: must we trust this the same Supreme Court of Appeal (SCA) which dismissed an appeal by Shaik by quoting media articles that there was “generally corrupt relationship” between Mr. Zuma and Shaik and attributed them to a High Court Judge.
Thomas – Really you shoud read wider – I copy/paste something said by another blogger above
“Tony in Virginia // Jan 13, 2009 at 2:06 am
Mdu
Let’s not hide behind the words. While it is true that Judge Squires never uttered thos words, his judgement implied it.
Here is an excerpt of what Judge Squires said: “…and even if nothing was ever said between them to establish the mutually beneficial symbiosis that the evidence shows existed, the circumstances of the commencement and the sustained continuation thereafter of these payments, can only have generated a sense of obligation in the recipient…”
This, Mpho whether you like it or not, implies an existence of a generally corrupt relationship (mutually beneficial symbiosis …a sense of obligation in the recipient) between Zuma and Shaik. And then there was the fax (smoking gun) …”
Anonymouse: This is why I love lawyers the SCA said in its judgement I quote: “Between 1996 and 2002 Shaik and Mr Jacob Zuma engaged in what the trial court (Squires) appropriately called ‘a generally corrupt relationship’ which involved frequent payments by Shaik to or on behalf of Zuma and a reciprocation by Zuma in the form of the bringing to bear of political influence on behalf of Shaik’s business interests when requested to do so.”
Are you telling me that the SCA was saying it was implied by Judge Squires. I dont think so. You as an individual might think it was implied. The SCA wrote it in its judgement and never mention they thought that it was what Judge Squires implied.
Please read the judgement.
Thomas:
You are nitpicking over semantics. Judge Squires did find that there was a generally corrupt relationship between Jacob Zuma and Shaik. That’s a fact. He may not have uttered those words verbatim, but that was his finding.
Read the judgement.
If you trust that judges are to make sound judgements, then surely you can’t have a problem that the unsound judgement of Nicholson was overruled? Surely this should prove to you that our judiciary is in good shape, despite Judge Hlophe and others’ best efforts to disrupt it?
Thomas – I agree with Garg – though it might have been better for the SCA to omit the inverted commas to indicate a quote, the fact that they said that is what he found cannot be faulted as ‘dishonest’ in the way you are implying. Note that the CC did not say anything about that either – so it was not really that important.
Lets agree to disagree
My concern might not the be judgement in the appeal by Shaik but the the Fact, it is fact that the SCA took a direct newspaper misq
My concern might not the be judgement in the appeal by Shaik but the the Fact, it is fact that the SCA took a direct newspaper misqoute and made it a direct quote by the Judge in the Judgement of a trial. This to me seems strange, no matter what you guys may say. Was it important? I think so. It show that the trial in the media of Zuma affects judges and this should not be the case. Can Zuma get a fair trial? I don’t know. Maybe the judge will quote from the Sunday Times in his/her judgement. This is what we must be scared of.
I have always said we must beware of such so called mistakes here and there on this matter as they just strengthen the perception and belief that Zuma is being persecuted for political reasons. As much as we can debate these things till the sun sets. Out of the 43million how many do that? How many will accept it if Zuma is found guilty? If you saw the turnout of people in support of this man then we must be careful that judges make so called mistakes and try and explain them after the event. No matter what you guys may say these judges make a horrific error and now we must read in between the lines what Judge Squires had to say to justify their error.
Thomas – “Maybe the judge will quote from the Sunday Times in his/her judgement. This is what we must be scared of.”
You mean like Nicholson J did?
“No matter what you guys may say these judges make a horrific error and now we must read in between the lines what Judge Squires had to say to justify their error.”
That error is not HORRIFIC – it is trivial! Have you ever been a judge who had to work through 1000’s of pages of evidence to judge an appeal? Have you ever sat through a trial that took some months (or even years) to finalize, and made no mistake in the end. Judges are not super heros man! If such a trivial mistake is inexcusable in our justice system and affects one’s fair-trial-rights, could the Boeremag members before Jordaan J ever be said to have received a fair trial? Don’t be unnecessarily obtuse man!
Thomas // Jan 14, 2009 at 4:21 pm – “My concern might not the be judgement in the appeal by Shaik but the the Fact, it is fact that the SCA took a direct newspaper misqoute and made it a direct quote by the Judge in the Judgement of a trial.”
An you are totally correct- Squires never made that finding if it was indeed of no significance then why did he go out of his way to correct it six months down the line? I see the hoog-die-moer-in judge Harms also used his belligerent judgment to ever so sneakily try and wriggle out of that one.
“The judgment of the trial judge in the Shaik matter found, albeit not in those words, that a generally corrupt relationship (to use Mr Kemp’s words during argument) existed between Mr Shaik and Mr Zuma.”
“to use Mr. Kemp’s words during argument
And then Harms has the damned audacity to make the following statements:
“Its findings that (a) ‘there is no refutation that the Selebi warrants were cancelled by Mr Mpshe after political interference and that Pikoli was suspended because he refused to do so’ (para 205); that (b) ‘Mr Pikoli does not deal with the allegation that the issuing of the warrants against Selebi was not palatable to the President but the decision to prosecute the applicant was’ (para 206); and that (c) ‘the suspension of [Mr Pikoli] was a most ominous move that struck at the core of a crucial State institution’ (para 207) were all likewise based on unconfirmed newspaper speculation on which Mr Zuma did not and could not rely.”
Unconfirmed newspaper speculation ?
“The court also relied on the contents of a newspaper article that speculated that the decision to prosecute was politically motivated (para 200-205). Mr Zuma had attached the article to his founding affidavit to indicate that he believed that his case was being reviewed by the NDPP. He did not rely on the contents of the article which, in any event, were no more than inadmissible speculation by a journalist.”
Thomas, I know it is a worry for some like yourself that JZ is simply being made into more of a hero, but people can think what they like, it doesn’t really change anything. The point is that:
(a) When there is prima facie evidence that you committed a crime, and are prosecuted to establish whether or not you indeed did commit that crime, then it is not persecution – it is called due process of law, and every decent country in the world has it;
(b) The reason this ‘persecution’ has dragged on so long is because JZ himself has done everything possible to avoid his day in court which he has so often said he desires to have; and
(c) Regardless of whether or not he is being persecuted or conspired against, under the law he has a case to answer, and he must answer it. The rest is irrelevant.
While one must certainly admire the mule-headed stubborness in refusing to pay any attention to the facts at hand on the part of JZ’s friends and allies, who continue to swear on their mothers’ lives that he’s innocent, all their bleating doesn’t change the above three facts. It’s that simple.
ozoneblue // Jan 14, 2009 at 5:59 pm
I agree with you. At least Nicholson J relied on newspaper reports that were put before him. Unlike the SCA judges who relied on newspaper reports they had read whilst drinking tea/brandy at home/bar!
I am sure Selebi and his lawyers are watching with keen interest all the precedence that this Zuma case is setting. If you have money (be it yours or the taxpayers’) you can avoid your day in court by challenging every judgment and action no matter how trivial. You can later claim ‘justice delayed is justice denied’ and then apply for a stay of prosecution. With judges like Nicholson, you can get away with anything.
Question is, can Zuma look himself in the mirror and tell himself that he has gotten rid of all suspicions? Or does that matter to him?
Fact: if the courts don’t clear him, he will remain suspect.
Zuma may be innocent until proven guilty in the eyes of the law, but I am not the law. I read the judgement in Shaik’s case, and I can’t see how Zuma is not guilty.
His appeals and appeals and Mauritius applications to block evidence only add to the suspicion. I refuse to be fooled by anyone.
Ozoneblue come one give me a brake
Please do your research Im going to point out to you
http://www.saflii.org/za/cases/ZASCA/2006/105.html
section [218]
section [219]
what does it say there?
this one for your own reference
section [206]
chris mcdaniel // Jan 15, 2009 at 10:11 am
Are you trying to refute what Ozoneblue stated or you are emphasizing his point?
Thomas and OzoneBlue
here is the news report Appeal court errs in Shaik judgment
http://www.businessday.co.za/articles/weekender.aspx?ID=BD4A315740
Please look at this sentence “and may have relied only on news reports which generally but wrongly attribute the phrase to Squires.” This is not FACT, may is NOT FACT
The link i provided on the SCA clearly states our view is bla bla bla, it does not mention that FACT Squires mentions a “generally corrupt relationship” therefore we also accept that view….. No it clearly states the SCA has a view that the relationship is corrupt. this is sloppy reporting please point out to me the appeal court had in attributing the phrase to Squires.
http://www.saflii.org/za/cases/ZASCA/2006/105.html
there is a big deference betweeen quoting someone and interpreting someone.
Squires’ ruling showed that there was “an overriding corrupt relation-ship” or “sustained corrupt relationship” between Zuma and Shaik
the Appeal court never used the word Generally corrupted Relationship
SCA Sustained corrupt relationship is only mentioned in the subsidiary ruling. Big difference
Im refuting his points cos he is missing a few points which i wont him to look up
my comment is awaiting moderation but the key word is “Generally” SCA doesnt use that word
sloppy reporting. Yes there was carelessness from the SCA but very minor
and I want OZone blue to understand the difference between quoting and interpreting.
and what a subsidiary ruling
some homework for him and thomas while my comment is awaitng moderation
ozoneblue, Thomas, Bongs et al – If you search the SCA judgment linked by chris mcdaniel above, you will be astonished to find that nowhere in the judgment is the phrase “generally corrupt relationship” used, and nowhere did the SCA find that that is in fact what Squires J held in respect of the corrupt relationship that has been proven. The closest to that is in para [219].
“[219] In our view, the sustained corrupt relationship over the years had the effect that Shaik could use one of the most powerful politicians in the country when it suited him. In our view this is an aggravating factor. As stated earlier in this judgment it is clear that very soon after the advent of our democracy Shaik saw economic opportunities beckon and realised early on that he could use political influence to his financial advantage.”
Is this not rather a case where the media has misreported what both Squires J and the SCA said? … “Kom manne, klim nou maar weer bietjie af van julle perdjies?!”
Mouse,
Thomas // Jan 14, 2009 at 3:03 pm
Anonymouse: This is why I love lawyers the SCA said in its judgement I quote: “Between 1996 and 2002 Shaik and Mr Jacob Zuma engaged in what the trial court (Squires) appropriately called ‘a generally corrupt relationship’ which involved frequent payments by Shaik to or on behalf of Zuma and a reciprocation by Zuma in the form of the bringing to bear of political influence on behalf of Shaik’s business interests when requested to do so.”
Is Thomas fabricating the bove quotation?
Bongs yes he is cos he is quoting news reports No one nore the SCA used the word “generally” that word came from the media itself.
and Thomas has said “FACT” that the SCA used newspapers to get there information and not read the judgement by Squires in the trial which is a load of rubbish
Bumber tho my comment is still being moderated but it explains whats going on.
basically look no one used the word “Generally” the media came up with that word so anyone who uses that word “Generally ” is just quoting the newspapers and some how the SCA got blasted for it. the only mistake the SCA made is it mentions Sustained corrupt relationship in the subsidiary ruling .
so i mean come on that is such a minor mistake to warrent that Zuma will get an unfair trail
Also, section [16]:
The court upheld the State’s contention that Shaik and Nkobi benefited from the intervention and that it was improper and part of an overriding corrupt relationship that existed between Zuma and Shaik.
Excuse us. It’s not a generally corrupt relationship. It’s an overriding corrupt relationship.
Mouse , Chris and Garg you owe Ozoneblue an apology. The phrases “sustained corrupt relationship”; “overiding corrupt relationship” and “generally corrupt relationship” were all uttered by the SCA judges! The last phrase was specifically attributed to Squires J.
“[8] Between 1996 and 2002 Shaik and Mr Jacob Zuma engaged in what the trial court appropriately called ‘a generally corrupt relationship’ which involved frequent payments by Shaik to or on behalf of Zuma and a reciprocation by Zuma in the form of the bringing to bear of political influence on behalf of Shaik’s business interests when requested to do so.”
http://www.saflii.org/za/cases/ZASCA/2006/106.pdf
Before we take this further be man enough and tender your unconditional apology. Now I sound like Dontgetmestarted! …where are you by the way?
Fair trial for Zuma?
The more I think about the SCA judges’ utterances, the more I become convinced that Zuma is not likely to have a fair trial. Our jurisprudence is pinned on stare decisis system, which simply means that the lower courts are bound by the decisions of the higher courts. Zuma is going to be tried by a High Court which is subservient to SCA. SCA has already found that it has been proven beyond reasonable doubt (and correctly found by Squires J) that between Zuma and Shaik there existed a “sustained”; “overriding” and “generally corrupt relationship”. Based on the stare decisis principle, this decision, unless overturned by a higher court, is binding on the High Court that will be trying Zuma.
On whatever interpretation Zuma’s trial will commence on a minus score for him!
Bongs – Now come on, that is the separate judgment on the confiscation order that Squires J made that you are referring to, not the judgment pertaining to the guilt or not of Shaik (and, for that matter, Zuma) – in which, as Chris, Garg and I have rightly pointed out, the SCA never said that Squires J had said so. By the way, Squires J’s separate judgment on the confiscation order, which only followed sentence later, might have contained something like that, which is why the SCA might have said so in the separate appeal judgment – do you have a report that says different? However, on that issue, I do’t think that an unconditional apology to ozoneblue s required – remember, confiscation orders go much wider than criminal convictions. There you don’t even have to prove proceeds of crime were obtained from the relevant crime itself, but it would suffice that it was obtained from related criminal activities etc. The evidence relied on in such applications are also not subjected to the stringent standards required in normal criminal hearings. Again, the imputation, even be it wrong, has not been regarded as so serious that the CC had to intervene with that part of the SCA’s judgment (altough it did deal with the confiscation thing a little differently than did the trial court and the SCA). So again, I don’t think an apology is required.
I am inclined to agree with Bongs. Yet it is possible that legal scholars may argue that these observations were made in the context of a civil judgment and should not be taken as an aspect binding on lower court which will try the matter.
I think the concept of sub judice has been stumpled upon by pervasive discourse by judges in courts, corridors and at home.
Media speculators and so-called legal experts have pronouned themselves on the living pertinent facts of this matter as not to afford Zuma a fair hearing.
Perhaps, our legal jurisprudence is experiencing intensive metamophorsis which will forever bury this common law doctrinals tools.
um bongs well spoted but im not going to apologies as u do realsie this is a subsidiary ruling?
and you do know the SCA is allowed to make is own independent finding? and if the SCA has found that there is a corrupt relationship and the SCA over rules a high court theres reason why there is a corrupt relationship
The Bloemfontein court said the trial court’s view of the “symbiosis” between (Mr) Zuma and (Mr) Shaik was confirmed by the SCA in various parts of its judgment which ultimately conveyed that on the evidence in the case an overall corrupt relationship existed.
Judge Squires has stated and you can find quotes by him evidence exist that there is
Bongs im really lost why is it so hard to accept that there is a case for a corrupt relationship between Zuma and Shaik?
If you want read Judge Squires count 1 count 2 and count 3 whether or not Judge squires never used that word in any of the trials of Shaik the point still remains that evidence suggest exist. pointed out by Squires
Where can we find the Squires judgment?
N: Dlamini:
Zuma does not have a legal duty to remove suspicions! The state does have a strict mandate to prove its case not on a prepoderance of probabilities but beyond reasonable doubt !!
Z : on google
Mouse, hold your horses! Firstly, it was suggested that Ozoneblue had fabricated a quotation from the SCA judgment – now that has been refuted. Secondly, it matters not that this was said in the confiscation order judgment. Do not lose sight of the fact that consfiscation order presupposes criminal conviction. In this context the SCA had already upheld Shaik’s conviction in the main judgment based on the “sustained” and “overriding corrupt relationship” they found to exist between Zuma and Shaik!
The Concourt did not deal with this issue because it was not raised since Zuma was not a party thereto. Remember that this phrase is prejudicial only to Zuma and not Shaik because he was convicted for corrupting Zuma.
Ishmael lol the state would like to but um Zuma seems to be running away ( Run Bambi run). sorry but thats fact but in the mean time based on the evidence that exist there is a case for Zuma to answer to. Its simple just answer it and clear your name.
Chris, I can see that now you are caught between the rock and the hard place! Even if I agree with you that Zuma has a case of corruption to answer to, the problem is that the Highest Court has already pronounced that a generally corrupt relationship exists between Zuma and Shaik – in Zuma’s absence, mind you! If you ask me, the existence of a generally corrupt relationship = guilty of corruption – period!
All of this is as a result of Ngcuka’s decision to charge Shaik and not Zuma – a decision Harms DJP has found to be not ‘bizzare’!!!
Bongs – “Remember that this phrase is prejudicial only to Zuma and not Shaik because he was convicted for corrupting Zuma.”
How could it be prejudicial to Zuma if he was not on trial and, as the SCA rightly pointed out in the latest judgment, proof of Shaik having had a corrupt relationship with Zuma did not prove Zuma was guilty, as each of the parties’ criminal intent must be proven before he can be convicted. As Chris points out, the confiscation order judgment is a subsidiary (civil) judgment. Furthermore, forfeiture orders might also be possible where one is not convicted of a crime, but I agree, a ‘confiscation order’ presupposes a conviction, but the order should ot be in respect of proceeds relating only to the crime a person has been convicted of, but also to related criminal activties etc.
Furthermore, I cannot find Squires’ judgment on the confiscation order anywhere (it is not on saflii) so as to decide whether indeed the SCA made a mistake.
Z – Have you been able to find anything yet?
Bongs
Mouse, hold your horses! Firstly, it was suggested that Ozoneblue had fabricated a quotation from the SCA judgment – now that has been refuted
No bongs you getting this mixed up remember subsidiary ruling this is where all of this came from. and to be honest with you this a minor mistake that media blew out of context.
Look you need to take it from this appoarch. Since Zuma was not part of the trial and the state proved there was a corrupt relationship from Shaiks side and evidence suggest exists from Zuma’s side this is why the state is trying to prosecute Zuma because there is a case.
Ask yourself this “generally corrupt relationship” and really this is the point and the crux of it cos really this coined phrase is trivil….cos there is no legal difference, it means absolutly nothing, “0″ it is irrelevent
because really that was the finding of the court…YES? NO?
This is an argument with no substance cos at the end of the day thats what judge Squire found thats the bottom line.
surely you must agree on this?
I could find it here:
http://www.businessday.co.za/downloads/Shaik_Judgment.pdf
I asked because I hoped to find it on a site other than a news one, like saflii, but couldn’t. Just overly cautious I guess.
Ishmael – “Zuma does not have a legal duty to remove suspicions! The state does have a strict mandate to prove its case not on a prepoderance of probabilities but beyond reasonable doubt !!”
I agree, but when there exists reasonable suspicions, enough to charge a person of that stature, then his trying to evade his day in court (where he won’t bear any onus, mind you) does create more than reasonable suspicions in the minds of spectators on the touch line that he has something to hide and that he is in fact guilty. It is true that he is not legaly bound to remove suspicions like you say. However, if he does not want the world to think that he is guilty in the light of his trying o evade being charged, then he must face the music. It is as simple as that. His right to be presumed innocent (s 35) until proven guilty only finds application in a criminal trial before a competent court of law, not in public or political debates. This much, I think, we have clarifed in other debates belw already.
Z – Thanks, but that is the judgment where he convicted Shaik and others of the various crimes. I was actually asking for the judgments on sentence and on the confiscation order proceedings – they are two separate jdgments from the one on the merits. It is in one of those two that I suspect that Squires J might have said someting similar (look – not binding myself here!) than what the SCA in its subsidiary judgment on he appeal of the confiscation order imputed him to have said.
Ishmael I want to also touch on this a true leader will stand up and face the music in order to gain respectability. This is the problem that we have with Zuma hell he might be a nice guy, a guy who will have tea with my gran but you is running away from respeonsibility and credibility. He is proving to be a weak leader I will have so much more respect for him even if he is found guilty i would have so much more respect for him as man cos he stood up and took accountibility.
South Africa deserves that esp when it comes to a presidential candadate. I cant understand the mentality if you and the ANC support him so much just go to court and clear his name he actually the nation that much esp as president of a country this isnt a game or a reward giving to someone who is a struggle hero. Your playing with the nation. We as the people dont deserve that.
The prejudice emanates from the fact that court pronounced on his quilt before he court appear before such courts, the same way as court pronounced on Mbeki’s political meddling in his absence from the court proceedings to controvert or rebut such imputations.
Zuma has been convicted in absentia by Squires, SCA, in the media, in courts restrooms, in blogs by legal commentators and the like.
In the event, he gets tried, the court will only need to go through the motions!
This is utterly unjustified in our law !, if we still have real law in SA!
@Anonymouse you were well spot on yesterday, looks like Nicholson wont be the judge and looks like the judge will be assesseted by 2 others if this lands up in court.
the only thing now is to see if Zuma can convence the CC that all the Judges are influenced by the news and he wont get a fair trial and the last attack a permanent stay of prosecution.
All fails well we just might have a court case
chris mcdaniel // Jan 15, 2009 at 3:19 pm
At least you have been man enough to concede that SCA did make a mistake. Where we disagree is your description thereof as being minor. Just to illustrate the predicament faced by the lower courts when a higher court has pronounced on something – (Those who are familiar with Labour Law) In Sidumo matter the SCA, led by Cameron JA (as he was then), overturned a decision of the LAC and ruled that Mr Sidumo was correctly dismissed. Whilst the matter was pending before the Concourt, Zondo Judge President of the Labour Appeal Court, had to decide another matter involving the same principle as in Sidumo’s case. Kicking and screaming, Zondo JP wrote a judgment in excess of 100 pages explaining why Cameron JA got it wrong. However, at the end he said he was bound by the decision of the SCA. Ironically, shortly thereafter, in Sidumo’s matter the Concourt ruled that indeed Cameron JA had got it wrong!
That is stare decisis for you! So, a ‘minor’ mistake by SCA has far reaching consequences for a person facing a possibility of 15 years in gaol!
Ishmael This is utterly unjustified in our law !, if we still have real law in SA!
Real law? ok i suppose its fair that we tax payers pay for Zuma to dance around the courts and trying every possiable root not to go to court.
Yeah money well spent. thanks
Bongs thats why there is a system and thats why shiek went kicking and screaming to the Concourt and guess what the concourt agreed with the other 2 courts thats why he is in jail for 15 yrs.
So like i said that coined phrase means nothing there is no substance to it cos it was proven that there was a corrupt relationship unless all 3 courts are wrong now?
Anonymouse:
The evidence churned out in the media creates a reasonable suspision. On the basis of this suspicion, the courts have declared that there is a corrupt relationship between Shaik and Zuma, both the lower court and the SCA.
Zuma has strongly protested that his fundamental constitutional rights have been trenched upon. realising the political antics employed, his legal representatives have employed shrew legal tactics which will ensure that he succeeds to realise his political career and also defends his rights to the fullest extent of judicial possibilities.
He cannot be faulted in law foe making several applications which he genuinely believes are justified to assert or defend his rights.
There is archaic case law invoked to justify surrender on the part of Zuma with respect to his chain applications. This cannot be sustained in comtemporary constitutional law.
There cannot be any adverse legal inference to be exacted on the basis of the applications as such will be out of sync with our nascent constitutional supremacy.
After all the ports of call have been exhausted the trial will begin. There will be at least three future appeals which will be lodged (2) at the CC, (1) SCA.
The foregoing will emanate from the dissatisfaction with the interpretation of 179 and the application for permanent stay of prosecutions.
Bongs – I would still like to read Squires’ judgment on sentence and on the confiscation order issue, because I am still not convinced that the SCA was not justified to say what it did in para [8] of the confiscation order judgment.
Ishmael – Hell, you should know that Squires J did not convict Zuma in absentia! As Harms DJP quite rightly pointed out in the most recent of this miriad of judgments on the issue, such a finding in the case of the alleged corruptor does not necessarily imply that the alleged corruptee is also guilty, each one’s criminal intent has to be proven – it can happen that in the same trial, one is convicted and the other acquitted, because it all depends on the individual person’s subjective intention – the alleged corruptor: what (motive) he intended with the gift; the alleged corruptee: why (with what motive) he received the gift. So, if they are tried separately, the same principle applies. I think that I, from the very outset in these debates since a few years ago, consistently and persistently pointed out that the mere fact that Shaik was convicted does not mean that Zuma will ever be convicted. But he seems scared that such a thing could happen – thats something else.
Ishmael and bongs
CC ruling
http://www.saflii.org/za/cases/ZACC/2007/19.pdf
please [32] in fact read the whole damn thing. cos this really captulates ths whole debate. that really Generally corrupted relationship is of nor relevence the point is which Ishmael you still cant grasp is the evidence exist
Chris, I doubt if you read the paragraph you are referring to.
“…contention by the applicants that the Supreme Court of Appeal was influenced by the media, and not only by the evidence before it when, in its judgment in the POCA proceedings, it incorrectly attributed the phrase “a generally corrupt relationship” to the High Court.”
The Concourt is simply recording the applicant’s contention which was later dropped during oral argument.
Bongs – the same thing goes for the current debate. The CC recorded the applicant’s contention that the SCA has been influenced by the media, but the argument was later dropped during oral argument when the members of the court questioned counsel and indicated their intention to disagree on that score. Now, if the CC did not see it as having unjustifiedly influenced the SCA, why must it now be seen in that light in a case concerning Zuma. And, as Harms DJP pointed out, this time around it was Kemp J Kemp that used those words although it was never proven that Squires J used them. But then, quite rightly, he goes on and points out that even on the assumption that that is what Suires J in fact held in respect of Shaik, and even though corruption is a reciprocal crime, it does not follow that Zuma’s guilt has been established. I, however, still suspect that Squires J might’ve said something to that extent in his reasons for sentence or in his judgmeent in the confiscation order proceedings, which led the SCA to hold, as a matter of quote, that Squires did say such a thing. Anyway, it has never been disproven, except for Squires J later stating in a press statement that he never said that, that he did not use those exact words in one of his three judgments. As far as i can remember, he was only referring to his judgment on the merits when he went into denial. But, that is not so important. What is important is that the CC is of the opinion that such a wrong quote, if it was wrong, did not have the devastative effect the ‘revolutionaries’ would have liked it to have in the eyes of the highest court.
This is what Squires J said in the court’s judgment on the merits, which was correctly referred to in the appeal judgment on the merits:
“It would be flying in the face of commonsense and ordinary human nature to think that he did not realise the advantages to him of continuing to enjoy Zuma’s goodwill to an even greater extent than before 1997; and even if nothing was ever said between them to establish the mutually beneficial symbiosis that the evidence shows existed, the circumstances of the commencement and the sustained continuation thereafter of these payments, can only have generated a sense of obligation in the recipient.”
Note “mutually beneficial beneficial symbiosis that the evidence shows existed”. In my book that more or less equals “generally corrupt relationship that the evidence showed existed”. That is why I think Squires J might just have said something like the words the SCA quoted in one of the other two judgments on the issue.
Anonymous, the “generally corrupt relationship” phrase was coined by the prosecution and form part of its charge against Shaik. When Squires convicted Shaik and said there was this mutual symbiotic beneficial relationship, Debra Patta (I was in the Etv studio at the time, so remember this) and others latched onto it and equated that phrase used by Squires (correctly I think) with the phrase used by the prosecution. And because it is such a deliciously scandalous phrase it became the one used in the media and later by SCA, rather the the more formal and dry version used by Squires. The meaning is the same though as Squires agreed with the prosecution – he just used less provocative words to do it in.
Prof – “the “generally corrupt relationship” phrase was coined by the prosecution and form part of its charge against Shaik”. That settles it then: If it was part of the prosecution’s allegations in the charge sheet; and, if Shaik was convicted ‘as charged’ (the judgment of Squires J just says ‘Guilty’ – meaning ‘Guilty as charged’), then Squires J did actually (without saying it in so many words) find that there existed a ‘generally corrupt relationship’ between the two. Then, the media (and the SCA!) weren’t all that wrong, and the loyal Zuma cadres (and even Squires J) were wrong to state that the court below never said that. As you say: “The meaning is the same though as Squires agreed with the prosecution – he just used less provocative words to do it in.”
ozoneblue, Mdu et Bongs. Ha, ha, ha!!! Thought there was a legalistic answer hidden somewhere in there. Bye-bye uncle Jacob – at least until the next round has been decided.
Now I can go on and do what I’m on the NET for, STUDY!
Hey, if it makes anyone feel better: I apologise for claiming that the phrase “overriding corrupt relationship” was part of the Squire ruling. It is from the SCA ruling on Shaik’s appeal.
Garg – Amen, brother! Hee, hee!
Pierre De Vos // Jan 15, 2009 at 6:19 pm
Pierre – you see this is where I disagree. “Mutually beneficial symbioses” does not necessarily imply “general corrupt relationship”. For example : you may conclude that Ngcuka implicating Zuma and Ngcuk’a wife then stepping up to take Zuma’s position can be seen as a “mutually beneficial symbioses” – but there is no evidence (yet) of a “corrupt relationship”.
Why do you think Judge Squires went out of his way to correct this misattribution ? Even if Shaik paid 10 trillion dollar (US not Zim) into Zuma’s account the prosecution must still show that Zuma “performed favors” in return otherwise it could just as well be old friends helping each other out in times of need. Based on the Squires judgment, this is exactly where the controversial letter to Gavin Woods authored by Mbeki yet signed by Zuma comes in.
ozoneblue, but that is exactly what Squires found (and aws confirmed on appeal), namely that Zuma did favours for Shaik after this history of payments to him by Shaik began. As I said before, legally the only way Zuma can get off is if the state fails to prove that Zuma had the intention to be corrupted when he recieved the money and did the favours.
PdV
I suggest that you re-read that judgment. I’m just going to point to a few paragraphs:
“From the full result of all this additional information, it emerges that the State case is not the usual corruption charge of one payment for one act or omission in the line of the recipient’s duty. It is that the payments made by the accused effectively constituted a type of retainer by which accused No 1 agreed, expressly or impliedly, to pay these many expenses over this period to Zuma or for his benefit or to make cash payments to him as and when he needed such financial help, while he, in return, would render such assistance as he could to further the accused’s interests, as and when asked. It is not alleged that there was any particular payment for any particular act or omission of duty.”
Note very specifically the last sentence above.
“Mr van Zyl, on the other hand, as I understood him, sought to argue, in identifying the ambit of the charge, that the acts that Zuma was allegedly intended to commit or omit to do in respect of the payments in the schedule included those listed in paragraph 11 of the State’s reply to the accused’s request for further particulars. That meant that the case was that Zuma breached his ministerial duties by “allowing” Schabir Shaik to do various things, like advertise his relationship with Zuma and use the title of “financial advisor” to Zuma in brochures and correspondence, when there was no evidence that Zuma even knew this was being done, let alone allowed it to happen. ”
You will note then that at the end of his judgment the focus moves squarely to the letter written to Woods as evidence of Zuma allegedly performing a favor in return for the alleged bribe solicited from Thétard.
ozoneblue, you seem to prove my point: in the quoted passge the court makes it clear that this is not a case where ONE payment was given to obtain ONE favour. Payments were made over a long period and then favours were done. This the state called a generally corrupt relationship. Besides, read the whole judgment as well as the SCA judgment where it is made VERY VERY VERY clear that Zuma did many favours for Shaik. You are referring to the second charge dealing with the bribe from Thint where the letter is indeed important but it had nothing to do with the generally corrupt relationship. Please read again and separate the two counts…..
ozonblue – please re-read my last comment above. If the words “generally corrupt relationship” were included in the allegations in the charge sheet, and if the court convicted the guy on the charge, it impliedly found that all allegations in the charge had been proven and, hey, Presto! The finding was done! His later reaction to press reports to “correct” the issue is of no consequence – while it is true that, at least in his judgment on the merits (leaving aside the other two judgments that I have alluded to before) the words “generally corrupt relationship” never came over Squires J’s lips, he did “find” that by convicting the accsed on the charge. For a court to convict, one need not quote the charge sheet verbatim, the court is free to use its own words or interpretation of the allegations in the charge sheet. Simple.
OzoneBlue you stated Mutually beneficial symbioses” does not necessarily imply “general corrupt relationship”.
So from your understanding what does Mutually beneficial symbioses mean?
Ozone what you cant take way from Squires is the these two words “evidence exists”
Besides the phrase “generally corrupt relationship” what does that mean legally? the answer is nothing maybe on the political side could mean a different story but this isnt politics this is law
If it is true that “generally corrupt relationship” was part of the charge (which I have not yet verified) it was wrong for Squires J to convict Shaik “as charged” (if he did) in the absence of Zuma. But Squires J would not have taken the trouble of correcting the SCA error if indeed he found the existence of the “generally corrupt relationship”.
I also agree with Ozoneblue that “generally corrupt relationship” does not equal “mutually beneficial symbiosis”. In the context of a criminal charge of corruption a finding of “corrupt relationship” is tantamount to conviction for corruption, whereas a finding of “mutually beneficial symbiosis” does not amount to conviction for corruption. Between friends there exists “mutually beneficial symbiosis” but between corruptor and corruptee there exist generally corrupt relationship. If you are in doubt check the dictionary meaning of ‘corruption’ and ’symbiosis’. If still in doubt check the definition of the crime of corruption.
Bongs – if “mutually beneficial symbiosis” does not amount to conviction for corruption, why was Shaik then convicted on that charge? And why was his conviction upheld by the SCA and the CC? I suggest you go read Harms DJP’s judgment in the Zuma matter and see what he says about dictionary meanings of words; and, especially again, his assertion that, even though the crime of corruption legally takes two to tango (in other words, there should be a ‘corrupt relationship’ whether general or singularly simple), proof that one of the two was guilty will not necessarily lead to the conviction of both. Each offender’s criminal intent has to be proven independently. As I’ve said earlier, it can even happen that during the same trial the corruptor is convicted and the corruptee is acquitted for exactly that reason. So your suggestion that Squires J could not convict Shaik in the absence of Zuma, where the allegations were that there existed a generally corrupt relationship between Shaik and Zuma, is misguided. Moreover, what would have happened had Zuma died, became incapable of being tried or received immunity against prosecution? Would Shaik’s conviction on that count still be tainted? I don’t think so.
“But Squires J would not have taken the trouble of correcting the SCA error if indeed he found the existence of the “generally corrupt relationship”.”
I think Sqires J did not re-read the charge sheet when he ‘corrected’ the SCA (not that it is within his power to correct the SCA!), or the implcation of his convicting Shaik on that count. He probably only re-read his judgment on the merits and thought: “Hey, I didn’t say what the SCA says I said!”
Bongs just as you stated “Between friends there exists “mutually beneficial symbiosis”” at the end of the paragraph states evidence exists.
That whole paragraph from Squires is candy coated and if you understand the paragraph Squires is exactly saying a corrupt relationship between the 2 “friends”
One of the evidence given was the encrypto – Fax which was used as factual evidence
Heres some quotes from Squires which i would like you to explain
“It could only have been to allow Zuma to live at an even higher standard.
“This scheme smacks strongly of serving self-interest rather than a sustained concern,”
“The evidence plainly shows that Zuma was prepared to intervene on Shaik’s behalf, and that Shaik was ready to ask.”
Squires judgement shows this SCA shows this and CC agrees with this that there is evidence to a corrupt relationship. Bongs you can debate this till you blue in the face well lol ozoneblue in the face put the facts remain
Shaik intended to influence Zuma, in furtherance of the business interests of Shaik and his companies, to act in conflict with the duties imposed upon Zuma by the terms of sections 96(2) and 136(2) of the Constitution.
Now Bongs this scares me lets say im in agreement with you lets say I agree that there was no corrupt relationship or that Zuma is not corrupt but as we know Shaiks is corrupt and managed to influence Zuma or use Zuma. Bongs ask yourself this Zuma is our next president yet he had a history of a long friendship with Shaiks in which shaiks used Zuma all this time…..um either Zuma is extremely brainless and didnt realise oh Shaiks my china my bru my brother from another mother you gonna get into trouble if you carry on with bribing and trying corrupt the system or Zuma is easly controlled and influenced?? take your pick but none of them are pretty for someone who wants to be a president. Cos if thats the case ill have no problems influencing Zuma to wear a pink mini skirt to work
Squires sent a correction to business day after they published the generally corrupt false quote. It was long before the SCA judgment.
Interesting article by James Myburgh on this:
http://www.armsdeal-vpo.co.za/articles09/myth_making.html
(The original site where the article appeared has had their account suspended)
Z – Thanks for the article. I think I read it at the time. However, even if Squires corrected the media (or attempted to do so) as he apparently did before the SCA judgment, my point in the debate remains unscathed. While it is true Squires J immediately said, “I did not say that!”, he never went into the legal implications of his having convicted Shaik on a charge wherein it was alleged (relying here on what Prof de Vos said above) that there existed a ‘generally corrupt relationship’ between Shaik and Zuma. A conviction, withou qualification thereof with reference to a deviation from specific allegatrions in the charge, clearly implies that the allegatrions have been found to have been proven. Even if the exact words “generally corrupt relationship” do noot appear in the charge sheet, which I doubt, the legal implications of his findings as Chris has pointed out boils down to one and the same thing. It is like a judge saying, I never said in my judgment that the accused had “murdered” the deceased, I convicted him of murder because the evidence showed that he wrongfully and intentionally killed the deceased. The word “murder” is so much heavier than “wrongul and intentional killing”. Or, I never said that the accused is a “child murderer”, I only said that he wrongfully and intentionally killed the child. Same thing – in law that is.
Mouse
I for one am the type of person who would not have liked being misquoted, even if what I really said could be interpreted as the same. Interpretation of what someone said is so much in the experience and understanding of the receiver that I would prefer to only deal with the possible nuances created by my own statements and not those created by wrongly attributed quotes.
So while squires said, “I did not say that”. If it was wrongly attributed to me and the meaning was inconsistent with what I had said, I would certainly have said both “I did not say that” and “What I said did not imply that”. This as far as I know he did not say. But that’s just what I would have done.
It is still unclear whether Squires would agree with that statement in part or in whole.
Z – I agree. We as judicial officers have to cope with that on a daily basis, because every one of our words, and every one of our phrases, have certain implications. However, if you would read a (any) charge sheet in which corruption is alleged, the allegations in any single charge usually run a few pages in typed script. When a court convicts a person on such a charge, without saying that “such-and-such an allegation has not been proved, but, regardless, in terms of the law, the guilt of the accused has been established and, therefore, I convict him” – then the court impliedly says, “I find that all the allegations in the charge sheet have been proven”.