Over the last 150 days we have learned much about the power of the habitual in post-millennial, post-apartheid South Africa. We have heard it in the grumbling, cavilling, quarrelling and grousing about the logic (or lack of) of government decrees. We have also seen it in the defiance of logic among the many bourgeois folks who mistook their entitlement for rights, whether to go running, do yoga on the beach, surf, get takeaway coffees, or to purchase items subjected to restricted trade… We saw it in the contradictory messages relayed by official government channels, in the conflict between some experts advising government, between government officials and such experts, and in the ways in which opposition parties contradicted themselves as they opposed government proclamations.
Carl Niehaus, spin-doctor for the ANC who appropariately studied to be a dominee (seeing that Jacob Zuma has said the ANC will rule South Africa until Jesus comes back), has an interesting piece in Business Day, arguing that Jacob Zuma cannot get a fair trial because of the long delays. Section 35(3)(d) of our Constitution states that everyone has a right to a fair trial which includes the right “to have their trial begin and conclude without unreasonable delay”.
In essence he is arguing that the NPA started its investigation of Mr Zuma in 2001, but now we are in 2009 and yet Mr. Zuma has not had his day in court. Eight years have gone by since Mr. Zuma was first investigated and he could not possibly get a fair trial after all this time. Those people who argue these delays are all Mr. Zuma’s fault or that new charges were added only in 2007 and that there was therefore no unreasonable delay are “patently incorrect”, says Mr. Niehaus.
Mr. Niehaus has obviously been talking to some lawyers – which is a good thing – so he is not trying to regurgitate the argument that Mr. Zuma cannot get a fair trial because of the “trial by media”. That argument would never have worked simply because the “trial by media” argument fails to take account of the fact that much of this “trial by media” is based on facts, proven in a court of law. All these terrible things being reported about Mr. Zuma came out during the trial of Schabir Shaik – who is spending some quality time in jail for bribing Mr. Zuma and soliciting a bribe on his behalf.
But there is a legal argument to be made that Mr. Zuma would not be able to get a fair trial because of all the delays, and like the good spin doctor that he is, Mr. Niehaus has opportunistically latched onto this far more complicated but real legal issue to try and argue that his boss should never get his day in court and that it would not be fair to his boss to have to go to court to clear his name. (Obviously, this would mean we will be stuck with a President with a very dark ethical cloud hanging over his head, but the ANC seems to think the voters would not mind this.)
In Mr. Niehaus’ version of events, the state really blew the case when Bulelani Ngcuka decided not to prosecute Zuma. This led to the very long delays that will make any trial now unfair. Will such an argument work in court?
To help us decide this, we need to turn to the 1997 Constitutional Court judgment in Sanderson v Attorney General, Eastern Cape, which suggests that Mr. Niehaus might have a point, albeit not a strong one. The case makes for instersting reading, not least because it was penned by Johan Kriegler, the man who launched a scathing attack on Judge President John Hlophe – another person with questionable morals.
On the one hand, Mr. Niehaus might not be happy to hear that the Constitutional Court made clear in the Sanderson case that even where severe prejudice may flow from charging an accused, the remedy of a permanent stay of prosecution should only be considered as a last resort. Such a remedy, the CC said:
is radical, both philosophically and socio-politically. Barring the prosecution before the trial begins and consequently without any opportunity to ascertain the real effect of the delay on the outcome of the case is far-reaching. Indeed it prevents the prosecution from presenting society’s complaint against an alleged transgressor of society’s rules of conduct. That will seldom be warranted in the absence of significant prejudice to the accused.
We all benefit by our belonging to a society with a structured legal system; a system which requires the prosecution to prove its case in a public forum. We also have to be prepared to pay a price for our membership of such a society, and accept that a criminal justice system such as ours inevitably imposes burdens on the accused. But we have to acknowledge that these burdens are profoundly troubling and incidental.
In my reading, it will not be sufficient for Mr. Zuma’s lawyer to show that he has suffered emotional and political harm because of teh delays or that the case has been dragging on for more than 8 years. The question is (i) whether a person can receive a substantively fair trial in front of a judge or magistrate – despite the long delays and (ii) whether the delays itself affronts our idea of what a fair trial in an open and democratic soceity might look like.
Will a judge be able to come to the case without such strong preconceptions that it would make it impossible for him or her to have an open mind about the guilt or innocence of the accused? Will it still be possible for a judge to ascertain what really happened and whether the accused is guilty beyond reasonable doubt or will the long time be so unreasonable as to make this impossible? Will the delays be so long and so unreasonable as to have “punished” the accused so severely that it would make a fair trial impossible? And can these delays be attributed to the tardiness of the state to such a degree that it cannot be squared with the notion of a fair trial in an open and democratic society based on human dignity, equality and freedom?
In answering this question the court will be pragmatic, looking at all the relevant factors – including the nature of our criminal justice system, the complexity of the case and the behaviour of the parties. A court will have to look at the totality of the facts in the case and will also have to ask who is to blame for the delays – although this might not be decisive.
Clearly both the state and Mr. Zuma are to blame. Mr. Niehaus denies this, of course, (but then again, he will deny that the earth is round if it would please his boss), but the various applications brought by Mr. Zuma before the trial has even started has clearly contributed to the delays. In the judgement dealing with the validity of the search and siezure warrants the Constitutional Court made clear that an accused should normally refrain from bringing these technical applications even before a trial starts. the question of whether a person can get a fair trial, should ideally be decided by the trial judge during the trial.
This means Mr. Zuma will not come to the court with clean hands as he has launched one application of the other since 2005 to try and make sure he does not get his day in court – and this might count against him and detracts from the persuasiveness of Mr Niehaus’ argument.
On the other hand, the behaviour of the state will not be irrelevant, so the fact that Bulenani Ngcuka bizarrely decided not to charge Mr. Zuma along with Schabir Shaik might indicate that the state is also not coming to this with clean hands.
However, in the end, lawyers for Mr. Zuma will have to show that it would be impossible for Mr. Zuma to have a fair trial because the case has dragged on so long that witnesses would be unable to remember what happened or the media frenzy had so sullied the water that not even your reasonable judge would be able to come to the case with an open mind or will be able to ascertain what the true facts are. or they will have to show that the state, through its own inexcusable actions have “punished” the accused so severely that the delays are now deemed to be unreasonable because they affront our sense of what a fair trial might be.
Of course, the case is far less clear cut than Mr. Niehaus suggests. The fact that Mr. Zuma has substantially contributed to the delays will probably make it very difficult for him to convince a court that the delays were unreasonable. His best shot would be to point to the decision of Ngcuka not to charge him and to argue that it was the fateful decision of the previous NDPP that has delayed the case and that has made a fair trial impossible.
If I had to bet any money on it, I would say 9 out of 10 judges would dismiss such an application because of Mr. Zuma’s own role in delaying the trial. But if Mr. Zuma gets lucky, he will get that 10th judge who might agree with him, so its worth a shot.
Hey, its either that, or the prospect of facing fifteen years in prison. If your defense was funded by the taxpayers, would you not also have taken such a chance? I know I would. Whether South Africans would want to vote for a man too scared to face the music in his corruption trial is, of course another matter.BACK TO TOP