Here is my take, published on News24, trying to answer this question. Money qoute:
If Mr Zuma therefore has a strong case to answer (as he clearly has – even Bulelani Ngcuka said so when he declined to prosecute Mr Zuma), it would be irrelevant if that case was only brought to court for political reasons. Mr Zuma’s best bet now is to argue that the case has dragged on so long and the reporting in the media has so tainted the minds of every judge in South Africa that it would be impossible for any judge to hear such a case with an open mind and afford Mr Zuma a fair trial.
That is an extremely high hurdle to overcome and few judges would grant such an application. But Mr Zuma does have another ace up his sleeve. If Parliament confirms the firing of the NDPP, Mr Vusi Pikoli, and if President Motlanthe then appoints, shall we say, a more disciplined member of the ANC as head of the NPA, the “political solution” to his legal troubles might yet be found.
Well a plea bargain with the NPA is out. I think the ANC announced that today as that would prove he is guilty on all or some of the charges.
The SCA has put a back fire on the ANC and I would imagen the ANC has to come up with a Plan B.
So what are the options most likely knowing the ANC and Zuma they will go to the CC to over rule the decision.
As you mention Pierre if parliament confirms the firing of the NDPP and Motlanthe then appoints a disciplined member of the ANC that in itself is political meddling and the abuse of state or the ruling party’s abuse of power. This can not be an option at this stage. The NPA will lose all credibility as well as independence and become a puppet of the ANC
The NPA clearly states.
A member of the prosecuting authority shall serve impartially and exercise,
carry out or perform his or her powers, duties and functions in good faith and without
fear, favour or prejudice and subject only to the Constitution and the law.
(b) Subject to the Constitution and this Act, no organ of state and no member or
employee of an organ of state nor any other person shall improperly interfere with,
hinder or obstruct the prosecuting authority or any member thereof in the exercise,
carrying out or performance of its, his or her powers, duties and functions.
If government is wise the firing of Pikoli needs to be put on ice until Zuma has had these charges dropped or faces the court name cleared or sentenced.
It is funny how the ANC was to have the NPA Act reviewed. Your comment on this Pierre as they seem to think there is weakness in the ACT itself. is there?
Pierre, I requested in another blog if you could maybe speculate around Harms’ “harshness” on Nicholson. My view is that it would have been difficult for the NPA to continue trial with Nicholson presiding. Challenging Nicholson’s suitability on their “own” grounds would set them up for contempt of court. So Harms took care of Nicholson so the NPA can file a motion for his recusal as trial judge. Simply put, his motive was to give the NPA ammunition to get rid of Nicholson as trial judge. I have a feeling JZ could have a challenge of “judge shopping” waiting in the pipeline???
Setumo Stone, you have raised an important issue that I was also about to raise. Currently, Nicholson J is the trial judge in Zuma’s case. If the trial or any other interlocutory applications were to proceed, he should hear them. The difficulty is that those who are of the view that Zuma can still have a fair trial (because our judges are not influenced by the extraneous goings-on) will indeed be uncomfortable with Nicholson J presiding over Zuma’s matter. If they protest, they will be contradicting themselves.
Therefore another judge from heaven must hear Zuma’s case!
Sestumo and bones.
Harms said the high court had overstepped its authority and committed several legal errors when it threw out the case against Zuma last September.
The judge stepped into the political arena when he gave judgement to Zuma
This is why the NPA went to the SCA as they felt that there was an error in the Judgement and rightly so. if it was the other way round Zuma would have done the exact same thing and the outcome would of then gone to his favour.
Bones what make you think Zuma wont have a fair trail? He has had a fair trail since this all started has he not? Now that he seems to be running out of options everyone is crying murder ( figure of speech)
Stones – So Harms took care of Nicholson so the NPA can file a motion for his recusal as trial judge
You make it sound like the judge has a personnal agenda against Nicholson and that this is a conspiracy against Zuma.
Look two key points were this:
1) Judge Chris Nicholson held that Zuma’s corruption charges were unlawful on procedural grounds in that the National Directorate of Public Prosecutions (“NDPP”) did not give Zuma a chance to make representations before deciding to charge him (this is a requirement of the South Africa Constitution), and directed the state to pay legal costs.
2) Nicholson also added, however that he believed political interference played a role in the decision to recharge Zuma,
In that context, the irony was that this was the third time the South African Judiciary had found in his favour, including Zuma’s acquittal of the rape charge brought against him.
So what is the problem? Just let the judiaciry run its course and let them do there job. Your bases and theories on trail by media and Zuma wont get a fair trail is absurd when courts have ruled in his favour and that we have systems in place if one court has made an error
Zuma has every right to approach CC to over rule the SCA
Chris,
“Bones what make you think Zuma wont have a fair trail?”
In case you are referring to my post @ 9:51: what makes you think that I hold a view that Zuma will not receive a fair trial? Are you comfortable with Nicholson J continuing to preside over Zuma’s case?
Bongs to be honest I actually am infact im comfortable with any judge presiding over Zuma’s case the judge can be black, white chinies, vietnamies or even chucky cheese, Cos we have a system in place which has showen itself that it works if there is an error in judgment.
Yes Nicholson has appeared to have kept his eye off the game but then again one should look at his track record and after all he is human im sure there have been plenty of judges who have made errors? or is he the only person to have made a mystake in our judiciary? Thats why we have a system. The lower courts, hight courts SCA and CC.
If Zuma and the ANC is not Happy with the SCA then they have every right to go to the CC but if the CC rules in Favour of the SCA well Zuma and the ANC need to respect that. That is our law that is our system. The system is fair and the system can not be influenced.
SCA has just showen how strong our system is. You cant deny that.
Chris, I am also comfortable with any judge presiding over Zuma’s matter including Harms DJP and Hlophe JP. I wish those who are celebrating Harms’ judgment can hold the same view.
Prof. with all due respect, I think what you posted on news 24 regarding Zuma having an ace up his sleeve re appointment of a new NDPP is what I have been saying will happen all along, some even said I was talking about a looming banana republic!
Bongs – Any judge can sit on he trial, including Nicholson J – his making a mistake in the motion proceedings does not say he will make a mistake on the merits. It would however be a positive if the judge (whomever) sits with two assessors.
I’m glad to learn that the respectable bloggers of this forum will not support any application by the NPA for Nicholson’s recusal. What about you Pierre? Do you think the NPA could have a “fair” chance with Nicholson as trial judge?
chris mcdaniel – “Cos we have a system in place which has showen itself that it works if there is an error in judgment.”
I agree, though one must remember that, unlike the defence, the NPA would not be able to appeal a wrong finding on fact – only a wrong interpretation and application of the law is appealable by the prosecution in criminal cases. That is why I say that, in the case of Zuma, preferably, the judge must sit with two (not one) assessors, both of whom should be experienced lawyers – trained in fact-finding and the law. If the judge is white, the assessors should both preferrably be black; and, Zuma being Zulu, I think it would be fair if at least one of the court members (judge or assessors) is also Zulu.
Anonymouse,
Any judge can preside over the trial? Really ? Bongs suggested that he will also be comfortable with Hlophe JP presiding over the case? What about the complaint lodged with the JSC. Nicholson’s only sin was that he erred, like many other judges have done before him, that does not necessary mean that he cannot be impartial.
But there is a complaint pending against the JP which suggests that he attempted to influence the CC judges to rule in JZ’s favour. There is therefore a perception that he is not impartial. Will this not constitute sufficient grounds to requests his recusal should he ever be appointed to preside over the case?
Hi Prof
Someone suggested that if Mbeki’s “recall” by the ANC NEC was based on the Nicholson Judgment, then the former president may indeed have recourse in terms of labour law – i.e. unfair constructive dismissal etc.
What is you take on this?
shakira – There you caught me with my foot in my mouth – No Hlophe JP would not be suitable – if he could try talking CC judges into ruling in Zuma’s favour, then surely he’ll be able to make mincemeat of two lowly assessors, make a wrong finding of fact and acquit Zuma without fear of an appeal process overruling him (them). Nicholson J on second thoughts, well, I can’t really make up my mind right now. Let’s try and reason it out in the light of the public outcry for and against the SCA judgment. If I were Tshabalala JP, I would think it best in these circumstances to appease all minds and to request Nicholson J to step down and recuse himself mero motu. As Zuma has not yet been requested to plead, the appointment of the judge is not yet cast in stone, and he could appoint any other, even from outside KZN. If I were Nicholson J, I would have stepped down without an application, but, thinking about it again, I think the NPA could be justified in bringing such an application. Now, applying the test for the exceptio recusationis correctly, that a judge (or assessor) should recuse where the reasonable lay-litigant entertains fears of bias, there should not be any cogent reason for refusing such an application. Sorry Setumo, sorry Bongs, I’ve just changed my mind.
Nomikos – remember the President of RSA is not ‘employed’ by a political party in the true sense of the word, but rather by the State itself. Furthermore, when TM was re-called, he resigned the presidency, the ANC could not have forced him to resign except through a constitutional process involving Parliament. Labour law will not help him at all.
Anonymouse, As far as I know there is no precedent on whether the President is an employee or not. I mean, according to the LRA, an employee is any person who works for inter alia the State and who receives, or is entitled to receive, any remuneration. On the face of it, the President of RSA fits the definition.
Re TM’s resignation: is there not perhaps a sufficient legal nexus between the ANC (political party) and its members in Parliament, to conclude that TM was forced to resign and hence constructive dismissal?
Anonymouse, please clarify are you saying the NPA ia a lay litigant who entertains fears of bias? Me thinks htye are professional litigants!
Bongs,
I am one of those who are “celebrating” the SCA decision because I think it correctly points out the errors I (and some other people) pointed out when Nicholson J handed down his judgment.
And yes, I would have no issues with any judge hearing this matter, including the judges you’ve mentioned. I don’t really know why any of this should be an issue because we all know that chances are that the judgment will be taken on appeal anyway. I am assuming here that the matter will in fact go on trial even though my sixth sense tells me that this is not likely to happen.
I also do not know why people are talking as if this is the first case where the SCA has criticised a judgment of a lower court (almost criticising the judge himself) because I recently read the SCA judgment where they took Kgomo JP to task. I don’t see any significant difference in the general tone in both judgments. And by the way, in both cases I think the SCA was correct in addressing judges who seem to forget what their role is a judges.
I am comfortable with Nicholson presiding over JZ’s case. The fact that a judge has erred in favour of a litigant in a matter does not mean that he is not impartial and any speculation that Nicholson was bribed or improperly influenced to find in JZ’s favour is without any substance at this stage. Nicholson is not the first judge who has erred and whose judgement has been criticised and overturned on appeal and he will not be the last. There is no scandal there. Hlophe JP however is a totally different case.
At the trial, if Nicholson is presented with credible tested oral evidence, then it is quite possible that he might come to a different conclusion then in the motion proceedings where he only had the benefit of affidavits and legal argument.
Shakira, please enighten me. How is Hlope JP suppose to be a “different case”. Is there anything you know that some of us do not know. The way I see, Hlope JP, Nicholson J, Kgomo JP or any other judge that the NPD JP can decide will be quite competent to hear the matter.
Anonymouse
I like that approach, since everyone is crying foul that Zuma will never get a free trail and that Judges are influenced by the media and Harms correctly stated that a judge must keep up with day to day events that are happening in our country and may comment them in trail but were Nicolson was erred was he allowed his political views to come out in his judgement which was wrong and look are we really surprised about the SCA judgement?? I for one am not.
But your approach on having a judge and 2 assessors i actually like that would represent a fair trail in all fairness.
So this whole spin doctoring on trail by media and that it wont be fair is absurd.
Mzo,
It is different because an application for recusal of Hlophe JP might have more merit than that of an application for the recusal of Nicholson. There is no complaint of impropriety substantiated by affidavits, pending against Nicholson.
In Hlophe’s case there is a serious complaint lodged by CC judges pending against him. The complaints relates to him allegedly attempting to influence the CC judges to rule in Zuma’s favour. Although the JP has not been found guilty of any such conduct, the NPA might be able to argue that a reasonable objective and informed person might reasonably apprehend that he will not be impartial, if one has regard to the averments in the affidavits of the CC judges.
Mdu // Jan 14, 2009 at 2:44 pm
Although the NPA cannot be classified as a lay-litigant (neither could Kemp J Kemp et al), the test as formulated in our law is an objective test concerning the fears of the reasonable lay-litigant. (It is like the reasonable-man test to test for negligence as opposed to intent.)
Nomikos – No public office bearer is an employee to which labour laws and the CCMA system applies. (Just think of it, the President does nt like the pay offered to him / her by the IRC, and he strikes or toy-toyis about it!) Employees of state departments (from the DG to the lowest clerk) are employees, but not the office bearers – i.e. parliamentarians, the members of the executive, members of the judiciary etc. There is plenty litterature on that aspect.
Pierre, when are you going to sort out your RSS feed? It’s a mess!
Shakira – Although you might feel comfortable with Nicholson J presiding (as I also felt earlier), applying the test correctly would require him to recuse himself, even mero motu without application.
This one he’s bound to lose http://www.news24.com/News24/South_Africa/News/0,,2-7-1442_2453207,00.html
But that is good Bongs, otherwise we would have drawn 2 / 2!
Setumo, if I was the NPA I would not bother with a recusal application for Nicholson. The test set by the CC is VERY difficult to meet and such an application will almost certainly fail if the CC test is correctly applied by the judge.
Thomas, I must say you have a point. Harms Commission was shocking and made findings that were quite wrong. But there were four other judges who agreed with Harms – all post 1994 appointments, so that does detract from your general point and lends more credibility to the judgment.
I think PdV also raises an excellent point in his News24 post, in terms of the motivation for the prosecution being irrelevant. JZ has been implicated in a bilateral crime for which one party to that crime (Shaik) has already been convicted and sentenced. It makes no difference to the law whether JZ was prosecuted because people didn’t like him, because people wanted to sideline him politically or whatever. The fact is that he has a case to answer before the law, and he must do so.
IF there was a political conspiracy or the like, then this would be an entirely separate issue, and possibly a reason to institute an inquiry etc. However, this would not have any bearing on the facts at hand regarding JZ and his upcoming court case.
If you’re prosecuted, and there is evidence of misconduct, then tough life – you have to answer for it and let the law decide your innocence or guilt..
As for Nicholson, the man made a mistake. HOWEVER, he did allow for the possibility when he granted leave to appeal. I’m sure the judge is big enough not to get upset and sulky about it, and victimise the NPA for the SCA’s decision in any future judgements he delivers. For crying out loud, he’s a judge in South Africa – if this is the worst criticism he’s received he should count himself lucky!
Nomikos, no Mbeki cannot get his job back. The selection of President is a POLITICAL decision made by the National Assembly. Mbeki resigned when askwed by the ANC because the ANC ha dlost confidence in him. No one has the right to be President of the country – one can only become President if the majority of members of the National Assembly wants you to be President and remain President and this is a profoundly political choice.
Wessel, asked my technical people (I am technically illiterate!!!) to look at the feed problem.
Anonymouse // Jan 14, 2009 at 5:10 pm
Once I have read the papers I will decide whether or not to put my head on the block. One thing I can say at the moment is that it is in the interest of justice for leave to appeal to be granted (interpretation of the Constitution; importance of the matter and prospects of success).
SAfm newsflash: Bantu Holomisa requests the JSC to investigate whether Nicholson is fit to hold office! Finally, the plot to get rid of Nicholson kicks into gear. Job well done, Luis Harms! Pierre, how would you advice Holomisa in this regard?
Bongs – I am ad idem with you that interpretation of the Constitution is involved and that the matter is important. That is however not the test for leave to appeal. The test is whether there is a reasonable prospect of success on appeal, and that is where I disagree with you. The prospects of success, if they exist, are very slim. To my mind the SCA would be entitled to refuse leave to appeal and a Petition to the CJ or Application to the CC (the more correct terminology and procedure I think in such matters) is destined to fail on the papes without argument. What one must also bear in mind here is that time seems to be of the essence and, if the thing goes to the CC as a fully-blown application, the Zuma camp would have been allowed to achieve exactly what they aim to do here – delay the matter as long as possible. Therefore, because there is no reasonable prospect of success on appeal, it would not be in the interest of justice to allow an application for leave to appeal to be argued fully just because it is a matter of importance and of constitutional interpretation.
My view is that this is a “very dumb” political move. Now Nicholson will get a chance to respond directly to Harms and Harms would have NO opportunity to respond. I don’t think this would be politically favorable for the anti-JZers??? Pls STOP Holomisa before he reverses Harms political gains!!! What the hell, I wish the JSC would grant him the privilege.
Setumo Stone,
Can you honestly answer the following questions (the first one is a ‘yes’ or ‘no’ question):
1. Does Zuma has a case to answer?
2. If not, why not?
Anonymouse // Jan 15, 2009 at 10:14 am
Simply based on Nicholson J’s interpetation of s179(5), I would argue that there are prospects of success. Alternatively, the constitutional issue and the importance of the matter should trump the not-so-good prospects of success.
Whichever way, there is no chance that Zuma’s case will be finalized before the elections. Remember the ‘permanet stay application’ that is gathering dust in Hulley’s office – which will also go all the way to the concourt regardless of who wins or lose.