Quote of the week

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.

Khampepe J
Zuma v Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector Including Organs of State and Others (CCT 52/21) [2021] ZACC 28 (17 September 2021)
6 October 2008

Not guilty, but not innocent either: should Zuma be President?

Let’s start with the obvious: With a little bit of help from his clever lawyers and the very generous contribution made by us taxpayers towards his legal fees, Mr Jacob Zuma has never had his day in court. Our Constitution also makes it clear that he has a right to be presumed innocent of any crime by a court until the state proves beyond reasonable doubt that he is guilty of the crimes he is being charged with.

Mr Zuma might never be found guilty by a court despite the fact that Schabir Shaik has already been found guilty of fraud and corruption for bribing Zuma and soliciting a bribe on his behalf. This is because the state will have to prove that Zuma received the almost R4 million from Shaik and the other R500 000 from the Thint arms company and did some favours for both with the intention to commit corruption. If he ever gets his day in court, his lawyers might well argue that he was just breathtakingly naive about money (having grown up at Nkandla and all) or that he was just a bumbling fool who took all this money because he thought that convicted crook, Schabir Shaik, gave him the money out of friendship and was not expecting anything in return.

Like with the rape trial, a court – if given the opportunity to hear Mr Zuma’s version of events – might well believe him and might well find that while Zuma was ethically challenged, the state could not prove that he had the intention to be corrupted. After all, the state must prove this beyond reasonable doubt – which is an extremely high standard of proof indeed. And rightly so, because if proven guilty Mr Zuma will be sent to prison for 15 years.

Does this then mean Mr Zuma is innocent or that he is a criminal? The fact is, we really do not and cannot know whether he will be found innocent or guilty by a court of law and it is therefore impossible to say either way. Just as detractors of Mr Zuma cannot and should not assume that he is guilty, so his supporters cannot and should not assume that he is innocent.

If he is innocent, the fact that he was not charged along with Schabir Shaik would constitute a grave injustice to Mr Zuma because in the public mind suspicions have been created about this man whose financial advisor was sent to jail for 15 years for bribing and corrupting him. If he is guilty, of course, he was done a great favour when he was not charged because then he would now have languished in Westville prison alongside Schabir Shaik.

If he is innocent, the best way to address the grave injustice done to Mr Zuma would be, of course, to jump at the chance to present the relevant court with the appropriate defense to demonstrate his innocense. Unfortunately that is not what Mr Zuma has done, doing everything legally possible to try and avoid his day in court. For ordinary people like myself, it is difficult not to begin to wonder why Mr Zuma is so scared of having his day in court. It creates the perception that he has something to hide. What could it be?

Politically (but not legally, of course), the all out attempts to prevent Mr Zuma from having his day in court and clearing his name, is not good news for Zuma because it suggests that he has something to hide. It may be a good legal strategy (if he is indeed guilty) but it is not a good political strategy as it leaves a question mark over whether he is a criminal or not.

Is it appropriate for someone to become President when one does not know whether he is innocent or guilty of the very serious crime of corruption? I would say it is not. Personally I would like my President to be above suspicion of serious criminal conduct (one of the reasons I could never have voted for George W Bush). Maybe that makes me old fashioned but I am happy to debate the point.

It would be interesting to hear the reasons offered by those who say that the charges hanging over Mr Zuma should not prevent him from becoming the President. Is it because they do not take corruption seriously? Is it because they do not respect the judiciary and have already decided that Zuma is innocent – regardless of what a court of law may find? Is it because they think he might be guilty but others in the ANC are more guilty and that it is therefore unfair to charge and convict Zuma?

Or maybe there is a more convincing reason. Anyone with any suggestions?

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