James Myburgh – who used to be a researcher for Tony Leon – provides a facinating analysis of the Nicholson judgment on Politicsweb, which will have Mr Zuma’s supporters howling with outrage. He makes the (to my mind accurate point) that the legal basis for the judgment can be faulted, explaining as follows:
The key legal question facing the court was whether Jacob Zuma had a right to make representations to the National Prosecuting Authority before it decided to reinstate the charges against him. This related to a clause in the1996 constitution, replicated in the NPA Act, whereby the (yet to be created position of) National Director of Public Prosecutions was given the power to review a decision by a Director of Public Prosecutions (the soon to be former Attorneys General.)
Under the previous 1992 Act the Attorneys General had enjoyed completely statutory autonomy. The fear of the opposition parties was that a political appointee in the NDPP post – the ANC had initially wanted this to be a cabinet position – would use this power of review to exert political control over prosecution decisions by his more independent-minded subordinates. As a result of their concerns certain checks and balances were built into the system in section 179(5)(d). These required that if the NDPP was minded to overturn a decision of a subordinate he first had to consult the relevant DPP and take representations from the accused, the complainant, as well as other persons he thought relevant.
In his founding affidavit Jacob Zuma contended that the decision to press charges against him in late December 2007, as well as the June 2005 decision, “constitutes a review of an reversal of a earlier decision” by the National Director not to charge me taken during August 2003. As such the National Director was required to take representations from him, and his failure to do so rendered the decision invalid.
In his answering affidavit for the state Johan du Plooy stated that in the view of the NPA the requirements of section 179(5)(d) were only applicable when the National Director overruled a subordinate (a Director of Public Prosecutions.) DPPs themselves were perfectly able to reverse their own decisions whether to prosecute or not to prosecute (for example, when further evidence came to light.) It would therefore be absurd to expect the NDPP to have to invite representations every time he reversed an earlier decision “despite the fact that under section 20(1) the NDPP and DPP are assigned identical statutory powers.”
The provision in the NPA Act and the Constitution that an accused must be afforded the opportunity to make representations when a decision by a DPP to prosecute is reviewed by the National Director of Public Prosecutions (NDPP), can therefore be read as a safeguard against abuse of office by the NDPP. The need to safeguard against abuse will not arise when the decision was taken by the office of the NDPP himself and it was therefore nonsensical to require him to hear representations from the accused (in this case Zuma) if his own office made the original decision.
More controversially, Myburgh then argues that the decision to charge Jacob Zuma cannot be ascribed to political interference by President Mbeki, but rather by the cessation of political interference. Money quote:
The decision by Vusi Pikoli, shortly thereafter, to reverse his predecessor’s previous decision and have Zuma charged was consistent with the original wishes of the (non-partisan) professionals who ran the investigation into Shaik’s and Zuma’s affairs. The chances of a successful prosecution had also been immeasurably strengthened by new evidence that came out in the Shaik trial, as well as judge Hilary Squires’s ruling on the admissibility of certain key evidence.
Du Plooy states in his affidavit, “in the circumstances which prevailed after the Shaik trial, in which the State’s case has been so completely vindicated by the court and so obviously implicated the applicant in corruption of the most egregious kind, it is almost inconceivable that any reasonable prosecutor would not have come to the same decision.”
Counterfactually: if the NPA had decided not to charge Zuma, what then? Would this have been a sign of it acting independently, without fear or favour? It is possible that Mbeki was still powerful enough, at that point, to have prevailed upon the NDPP not to proceed with the prosecution. That he chose not to – even out of the worst and most cynical of motives – is surely a sign of non-interference (not the opposite).
I must say, the argument is quite persuasive and I can well imagine the Constitutional Court agreeing with this line of reasoning. Read the whole article and decide for yourself.
Based on what I have read so far here Prof I must say it does make for interesting points which could probably result in the Nicholson J judgment being overturned on appeal. But, I will follow your advice and go and read the whole article by James Myburgh…
I have now read the entire article Prof. It seems that the writer thereof was privy to information that was not raised in the affidavits and which therefore could not be taken cognisance of in the judgment. He relies more on politics to suport his opinion that an appeal by the NPA may be successful. Notwithstanding this, I liked his fascinating legal analysis pertaining to the review of decisions and the right of the accused to be informed and asked to make representations.
I am not trying to protect the judge here as his judgment was way too overreaching. It was more like a political analysis than a judgment. What I am merely saying is that the opinion of James Myburgh relies more on his political knowledge. Unfortunately this cannot be said about the judge.
I have to agree with James Myburgh that the judgment has invited anarchy into our justice system. If it is not overturned on appeal, it will result in bad precedence which will overburden our justice system. All the best to the NPA not because Zuma will be prejudiced but in the interests of justice and our country.
Sne, unlike what South Africa is getting use to, the justice system will not accomodate anarchy, secondly your premises is inconsistent with the counclusion that you draw.
Firstly the entire analisys of Myburgh is based on the FACT that section 179(5)(d) was incorrectly applied succeeded by an academical, gramatically and politically correct explanation of how it should correctly be applied.
Secondly that the conclusion you drew is wrong when you say you have to agree with Myburgh that the judgement invited anarchy into the justice system, he didn’t say that, lots of decisions have been appealed and reviewed and found different from the judgements of the courts they were reviewed from, please ask your nazi comrades not to post on Constitutionally speaking if you cannot speak constitutionally.
Friend // Sep 19, 2008 at 12:20 pm
“please ask your nazi comrades not to post on Constitutionally speaking if you cannot speak constitutionally.”
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My apologies…
Sorry I was a bit hard on you, just wanted to point out that you’re not exactly agreeing with the author and you don’t need to worry about the judiciary becoming unorganized. Also the governmental institutions will defend itselves from attacks from anybody, I was scared that some of the bloggers were under the impression that these institutions can be manipulated.
Pierre,
I must admit, Myburgh’s article is the most potent rebuttal of Nicholson’s judgment to date, especially his finding on the claims of executive influence on the NPA. No wonder you find his piece “fascinating”. And whether or not he realises it – or even intended to – Myburgh has single-handedly salvaged Thabo Mbeki’s image hugely damaged by the Nicholson’s judgment. After reading Myburgh’s article, if I were a Mbeki fan I would feel vindicated and wear a broad smile (from ear to ear). Of course he appears to have inside knowledge and to have access to information that none of us on this blog have at our disposal.
I hear an announcement is imminent from the ANC NEC meeting and will happen in the next hour! I thought they were supposed to meet for three days!
Siya, how is the fact that the decision to charge Jacob Zuma cannot be ascribed to political interference by President Mbeki, but rather by the cessation of political interference by Mbeki be placing Mbeki in a good light?
Whether the judgement was wrong or not, it’s too late now, isn’t it? The cat is out of the bag. En die poppe is nou besig (sjoe!) om te dans.
To me Myburgh Hits the nail on the head!
However I am interested in a few turn of events, maybe I should be a lot more vivid! Lets consider this:
I certain Mr Ngcuka announces that, the is infact evidence of corruption by one Jacob Zuma (once referred as Mr X). Having done this, he succeeds in trying this individual in the court of public opinion-I did mention that he holds the second most powerful Office in the Executive, right? Shortly after this, the Good Mr Ngcuka asks to be relieved of his duties, and it is granted unto him! As to be expected Jacob Zuma is sent packing! As if the plot was not thick enough, He is succeed by Pumzile Mlambo-Ngcuka! In case you are wondering about the relationship between the two Ngcukas- they are united in Holy matrimony! It would be revealled later on that, Thabo Mbeki (hes the one who fired Zuma and relieved Ngcuka of his duties-I suppose he was done with them(whatever they may have included), and appointed the other Ngcuka as deputy president) was to fiercely contest for the position of ANC president!
This is just a hypothetical, but maybe Myburgh should have addressed it, seeing he doesn’t believe in any meddling by the executive!
Maybe I’m paranoid, but Like Proff once said “Just because you are paranoid, doesn’t mean everyone is out to get you”
I note that Myburgh (who, after all, as we are so often cautioned, used to be a researcher for Tony Leon), does not deal with the legitimate expectations argument. If, indeed, Zuma’s lawyers were told they would have the opportunity to offer inputs before a new indictment was lodged, is that not an independently compelling factors – regardless of the statutory interpretation question?
I would have thought the stronger objection to Nicholson’s J reasoning may be his threshold finding that the decision to re-prosecute is reviewable at all. The treatment of the PAJA exemption of such decision as a Hurley-style ouster clause strikes me as artificial. But I have not studies this latter issue, so I cannot be sure that this objection holds.
The silence from Lindelani and his ilk is deafening…
Sne
You handled “Friend” very well. I’m proud of you.
Tony in Virginia // Sep 20, 2008 at 11:53 am
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Thank you