Regard must be had to the higher standard of conduct expected from public officials, and the number of falsehoods that have been put forward by the Public Protector in the course of the litigation. This conduct included the numerous “misstatements”, like misrepresenting, under oath, her reliance on evidence of economic experts in drawing up the report, failing to provide a complete record, ordered and indexed, so that the contents thereof could be determined, failing to disclose material meetings and then obfuscating the reasons for them and the reasons why they had not been previously disclosed, and generally failing to provide the court with a frank and candid account of her conduct in preparing the report. The punitive aspect of the costs order therefore stands.
It is reported this afternoon that Shabir Schaik’s lawyers will be lodging papers with the
It is unclear on what grounds the appeal will be based or what exactly will be appealed. However, the SCA refused to hear the appeal from the High Court on count 1 – the charge of general corruption of Zuma by Shaik (what judge Squires did not call the “generally corrupt relationship”) – so it does not seem likely that Shaik would be able to appeal the conviction on the first count to the CC.
On the basis of existing precedent, Shaik’s lawyers have a mountain to climb. They will have to show that:
They will also have to explain why they are lodging the appeal so late and why they had not properly raised the constitutional issues in either the High Court or in the SCA. (They may have raised constitutional issues, but this is not apparent in the SCA judgment.)
The right to a fair trial is guaranteed in the Constitution, so the lawyers could argue, for example, that the admission of the encrypted fax tainted the fairness of the trial. This aspect also has a direct relevance for any case to be brought against Mr Zuma, so it would not be far fetched to speculate that the decision to appeal was taken after consulting Mr Zuma or his lawyers.
The big problem with an appeal is that there might not be a reasonable prospect of success. The SCA confirmed admissibility of the fax on both common law grounds and on the grounds of legislation. I would be surprised if the CC overturned this aspect of the case by finding both reasons for admissibility was unconstitutionally applied.
Having said this, the
The crux here is the question of whether they think an appeal is “in the interest of justice”. Given the high political and public profile of the case and given the possible implications of this case for a prosecution of Mr Jacob Zuma, the members of the CC might feel that the integrity of the judicial system requires their intervention.
The CC can decide to reject leave to appeal on the papers alone without giving reasons or they can decide to hear argument on the question of whether leave to appeal should be granted and can at the same time also instruct the lawyers to be ready to argue the merits of the case.
I do not know what the basis for the appeal will be, so I can’t really make an informed comment on prospects for success. However, the politically astute thing for the CC to do (and they have shown themselves to be quite politically astute in the past), would be to hear argument on why leave to appeal should be granted, but then to dismiss the application.
That course of action would allow the CC to give their stamp of approval on the judgment of the SCA and would thus enhance the legitimacy of the judicial system as a whole. It would also confirm the principle that the fax would be admissible in the event of a Mr. Jacob Zuma ever standing trial for the same offence.
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