SCA delivers a scathing critique of Nicholson

Today the Supreme Court of Appeal (SCA) delivered a scathing indictment of the Nicholson judgement in the case brought by Mr Jacob Zuma to challenge the decision of the National Director of Public Prosecutions (NDPP) to charge him with corruption without hearing representations from him first.

The SCA judgement 9 written by Harms J) makes clear that the trial court erred by making findings on the merits of the allegations of a political conspiracy against Mr Zuma, when all it was required to do was to find whether these allegations were relevant to his case or not in order to decide whether the allegations had to be struck out or not. As it turns out, these allegations (said the SCA) were completely irrelevant to Mr Zuma’s case.

It follows from this that, as the trial judge recognised, ‘political meddling’ was not an issue that had to be determined (para 229 of his judgment). Nevertheless, a substantial part of his judgment dealt with this question; and in the course of this discussion he changed the rules of the game, took his eyes off the ball and red-carded not only players but also spectators. Lest his judgment be considered authoritative it will be necessary to deal with these matters.

This commendable approach was unfortunately subverted by a failure to confine the judgment to the issues before the court; by deciding matters that were not germane or relevant; by creating new factual issues; by making gratuitous findings against persons who were not called upon to defend themselves; by failing to distinguish between allegation, fact and suspicion; and by transgressing the proper boundaries between judicial, executive and legislative functions.

Nicholson, said the SCA, had wrongly placed a negative onus on the NPA to demonstrate that no political meddling had taken place – something that is unheard of in motion proceedings like these.

At the same time the SCA provided some clarity on the kind of independence enjoyed by the NPA in South Africa, stating that an Attorney General (or NDPP) is required by convention to make prosecutorial decisions without regard to political considerations and may not subject his discretionary authority to that of government. He or she is also not responsible to government to justify the exercise of his or her discretion because this political office has judicial attributes.

It confirmed – as I have long argued – that there is no contradiction between the Constitutional guarantee that the NDPP must act without fear, favour or prejudice, on the one hand, and the requirement that the Minister of Justice exercises final responsibility over the NPA on the other. As the SCA pointed out

although the Minister may not instruct the NPA to prosecute or to decline to prosecute or to terminate a pending prosecution, the Minister is entitled to be kept informed in respect of all prosecutions initiated or to be initiated which might arouse public interest or involve important aspects of legal or prosecutorial authority.

The judgement also deals a blow to Mr Zuma’s potential legal arguments about a permanent stay of prosecution as it makes clear that a “prosecution is not wrongful merely because it is brought for an improper purpose. It will only be wrongful if, in addition, reasonable and probable grounds for prosecuting are absent, something not alleged by Mr Zuma and which in any event can only be determined once criminal proceedings have been concluded. The motive behind the prosecution is irrelevant because… the best motive does not cure an otherwise illegal arrest and the worst motive does not render an otherwise legal arrest illegal.The same applies to prosecutions.”

This means that all this talk of political conspiracy is irrelevant for Mr Zuma’s case. If there is a case to be answered – even if that case was brought with improper or political motives – Mr Zuma still needs to answer the case. He will not be less guilty (if he is indeed guilty) just because he was charged for political reasons. A guilty man remains a guilty man.

The SCA judgment therefore seems to represent a stunning blow to Mr Zuma’s arguments and his hints and dark mutterings of a political conspiracy. It makes – what seems to me at least – the sensible point that an accused cannot and should not escape prosecution because the decision to charge him was politically motivated – as long as there is indeed a prima facie case against him that needs to be answered.

At the same time the SCA judgement is careful to point out that Bulelani Ngcuka’s decision not to prosecute Mr Zuma might have been valid. Just because one person is guilty of corruption does not mean the person being corrupted is guilty of a crime because the state will have to prove that the latter person had the intention to be corrupted. As I have argued repeatedly, this will be the heart of any defense by Mr Zuma’s legal team if he is ever charged. In pointing out this obvious fact, the SCA again lambasted Nicholson for his weird approach to the law and the facts.

Once again, the ‘strategy’ involving Dr Maduna, Mr Mbeki and all the other members of cabinet as well as the causal connection between the Ngcuka decision and Mr Mbeki and the cabinet as found by the trial judge were not based on any evidence or allegation. They were instead part of the judge’s own conspiracy theory and not one advanced by Mr Zuma. Further, the finding, by implication or otherwise, that a non-party may have committed a criminal act where this was not alleged, where it was not in issue and without hearing that party is incomprehensible.

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