As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
I have always been a fan of the columns written by Karima Brown and published in Business Day. She has even been blacklisted by the SABC, so she is a journalist with considerable legitimacy. Her analysis today about the Supreme Court of Appeal’s embarrassing mistake in the Shaik trial is, however, just plane wrongheaded because like most of the political players she invests everything into one phrase and forgets to look at the bigger picture.
In her column today she writes:
Judge Hilary Squires said the relationship between Shaik and Zuma was “mutually symbiotic”. He then went on to find Shaik guilty of corruption. As an ordinary person, you might conclude that there is an inconsequential difference between that statement and the prosecutions’ description of the relationship as being “generally corrupt”. The difference in law, though, is a gaping chasm. Squires’ original words leave undecided the possibility of Zuma’s own corrupt intent. “Generally corrupt relationship” does not. It binds both men with shared evil intent. It is the sort of statement a judge should never make. It is the sort of statement the Supreme Court should never parrot so mindlessly.
Where to begin to unpack this misguided analysis?
As the registrar of the Supreme Court of Appeal pointed out in a statement, the misattribution did not occur in the SCA’s judgment in the criminal appeal. The quote is to be found only in the introduction to the court’s subsidiary civil judgment on the forfeiture of Shaik’s assets.
If one reads the main judgment it is clear that the SCA does not make assumptions about Mr Zuma’s guilt. The judges focus sharply on the intent of Shaik to corrupt Zuma and not once comments on Zuma’s state of mind, something that must appropriatelly be left to a judge in a future Zuma trial.
When one deals with a corruption charge the State has to prove that there was the corrupt giving of, offering to give or agreeing to give a benefit which is not legally due to a person upon whom any power has been conferred or who has been charged with a duty by virtue of any employment or the holding of any office or any law or to anyone else with the intention to influence the person upon whom such power has been conferred or who has been charged with such duty to commit or omit to do any act in relation to such power or duty
constitutes an offence.
This means two people will always be involved in the corrupt act. Because Bulelani Ngcuka tried to protect Zuma, he decided to charge Shaik on his own and this created the strange situation where Zuma was not present in court but the court nevertheless had to make findings around the corrupt acts to which he was allegedly party.
The state managed to prove beyond reasonable doubt that all the material facts existed to convict Shaik of corruption. The same facts, plus proof of intention on the part of Mr Zuma to be corrupt, would also have proven Mr Zuma’s guilt. No evidence was led about Mr Zuma’s intention and in the SCA judgment no comment was made about the existence of such an intention.
It was therefore required for the court to make a finding on the nature of the relationship between the corruptor, who was before the court, and the corruptee, who was not. This they did without commenting on Zuma’s guilt.
I cannot see what the earth shattering problem with this modus operandi might be. Maybe Karima Brown has legal insights into this matter that eludes me, but on the face of her piece I cannot see what they might be. She pre-empts such a discussion by saying:
Arrogant, smug schoolboy solidarity and other knee-jerk responses will only increase suspicions that the courts in the Zuma matter have been at best incompetent and at worst, malicious.
I, for one, is not a great admirer of the work done by the SCA. Some of the judges are alergic to the Constitution and it sometimes seem as if something in the Bloemfontein water turn judges there into conservative traditionalists. So I did have a bit of Schadenfreude when I read about the boo-boo they made.
This does not mean one should agree with the populists, who have jumped onto this mistake as a way of diverting attention from the fact that Mr Zuma has a case to answer.
And really, speaking about lawyers as arrogant, smug schoolboys is a bit tautologous, isn’t it?