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 am going to make a rather bold prediction: Mr Jacob Zuma will be inaugurated as our third democratic President in June 2009, just in time for my birthday. This is because by June next year there will be no legal impediment to him taking over from President Thabo Mbeki and because his trial – if it ever happens at all – will not have commenced.
Mr Zuma and his lawyers will continue to use every legal trick in the book to postpone his trial which, he must have been advised, has every reason to go very badly for him. That is why the lawyers of Zuma and of arms company Thint are reported to want to bring two different applications this year that would postpone the trial for a very long time indeed.
A first application will argue that after charges were thrown out of court last year, the National Director of Public Prosecutions had to first review the decision to prosecute Mr Zuma and Thint before new charges could be instituted. It will further argue that in terms of section 22(2)(c) of the NPA Act the National Director has a legal duty when he reviews such a decision to consult the accused. This was not done in the Zuma and Thint cases.
I suspect this application has very little chance of success because the Act does not explicitly require the NPA boss to review a decision to prosecute after charges were thrown out of court. The Act gives him a discretion and only when he exercises this discretion does he have a legal duty to consult the accused on the decision. The NPA will surely argue successfully that the original decision to prosecute Mr Zuma was never reviewed so there was no need to consult with Mr Zuma or Thint before charges were reinstated.
A second application will probably then be launched for a permanent stay of prosecution on the basis that Mr Zuma’s right to a fair trial in terms of section 35(3) of the Constitution had been infringed. Mr Zuma’s lawyers will point to the long delays and the mistakes made by the NPA to try and convince them that his rights have been infringed and he should therefore not be charged.
I strongly suspect such an application will also be unsuccessful. This is because it will not be enough for Mr Zuma to show that he has suffered harm or even that his rights to dignity or privacy have been infringed. As Justice Kriegler stated in the 1997 Constitutional Court judgment of Sanderson v Attorney General, Eastern Cape, it was inevitable that a presumption of innocence played a bigger role inside the court room than in the court of public opinion.
He pointed out that as soon as anyone was accused and/or charged it was unavoidable that the person would be prejudiced.
While the presumption will continue to operate in the context of the [court] process itself, it has little force in the broader social context. Indeed many pay no more than lip service to the presumption of innocence. Doubt will have been sown as to the accused’s integrity and conduct in the eyes of family, friends and colleagues. The repercussions and disruption will vary in intensity from case to case, but they inevitably arise and are part of the harsh reality of the criminal justice process.
The Constitution, Justice Kriegler said, understood this and dealt with this problem in a pragmatic manner. What one had to ask was not whether a person suffered harm by being accused and charged – although the harm must be minimised. Harm is inevitable whenever any person is charged with a crime.
The question is whether a person can receive a substantively fair trial in front of a judge or magistrate. 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? And the Constitutional Court has indicated in the SARFU and Wouter Basson cases that there will be a very strong presumption that a judge would be able to act impartially and independently inside the courtroom, regardless what might have happened outside of that courtroom or who the judge might be.
This does not mean that Mr Zuma’s lawyers will not pursue the matter all the way to the Constitutional Court. As he seems to have access to unlimited funds (taxpayers money, I might add) to pay his lawyers, he can bring as many applications as he likes without having to worry that it would ruin him financially.
The various appeals could drag on for two years before the NPA would finally be able to charge Mr Zuma and by then he will be President. As long as he has not been convicted of a crime and sentenced to more than one year in prison without the option of a fine by the time the election comes along, he will be able to take his place in the National Assembly who will then be able to elect him President.
After being elected President he would theoretically be able to continue as President even if he is convicted of a crime because there is nothing in the Constitution that bars a sitting President from continuing to serve as President after criminal conviction. Of course, whether the ANC would allow this is a political matter.
No wonder I am trying so very hard to like our President. I am really, really trying to be optimistic here. It seems as if we are going to be stuck with Mr Zuma as President no matter what. We better fasten our seat belts.BACK TO TOP