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.
Supporters of Mr Jacob Zuma must feel, to some extent, vindicated by the comments by Judge Chris Nicholson yesterday in his judgment suggesting that there might well have been political interference in the case against him. But they will, of course gloss over those section of the judgment that casts a dark shadow over their leader.
Of these the most telling to me are the comments by Nicholson that Mr Zuma should have been charged with Schabir Shaik and the implication that the only reason he was not charged was because of political interference by the Minister of Justice, Pennuel Maduna and by implication the President. Judge Nicholson seems to suggest that Zuma was given special treatment at that stage and was not charged because he was being protected by the President. The relevant extract from the judgment reads as follows:
This decision was most strange for other important reasons connected to the nature of the offences. Bribery, as a common law offence, or in its statutory form, under the Corruption laws, is a bilateral offence. It cannot be committed by a person alone. Given that a decision was made to prosecute Mr Shaik and his corporate entities, the decision not to prosecute the applicant, when there was a case and bribery is a bilateral crime, was bizarre to say the least. It was a total negation of the Constitutional imperatives imposed on the NDPP to prosecute without fear and favour, independently and in consistent, honest and fair fashion.
If there was a prima facie case of serious corruption against the Deputy President there were, in my view, no reasons of public policy why he should not have been prosecuted simultaneously with Shaik. Its failure to do so brought justice into disrepute. The NDPP should either have charged the applicant or made no mention of a case of corruption.
In his judgment he analyses the evidence and seems to suggest that this decision – bizarre as it was because Mr Zuma just like Shaik had a case to answer – was the result of interference in the work of the NPA. Judge Nicholson quotes from the statement made by Bulelani Ngcuka when he announced that “we” have decided was not charge Zuma and says the following:
Given that there should not be a hint or suggestion that the NDPP might have lent an ear to politicians he [Ngcuka] is here expressing his greatest appreciation to a politician for his ‘unstinging’ (sic) support. Perhaps he meant ‘unstinting’. Even if he meant the Minister was not stingy in his support – in other words verygenerous in the time and energy he spent on the matter, it is a startling statement, given the total independence the NDPP is supposed to exercise. The comment that the Minister’s generous support demonstrated once more his political leadership leaves much to be desired. How does a decision to prosecute Mr Shaik and not the applicant provide a further demonstration of political leadership? Is the reason that he said this that the decision not to prosecute the applicant needed political evaluation and Mr Ngcuka learned from the advice of his leader? That seems to be the most plausible inference. The presence of the Minister at the press conference is otherwise inexplicable and seems to indicate a total lack of appreciation of the independence of the NPA.
Put at its very lowest Mr Maduna seems to have played a not insignificant part in the planning of the strategy in question, whatever its end objective might be. Given the constitutional imperative for the NDPP to be totally independent, and decide without fear or favour it was a most regrettable occurrence, in the light of the fact that it also constituted a serious criminal offence.
Justice Nicholson therefore suggests that Minister Maduna – with the aquiesence of the President – had shielded Zuma from prosecution and had thus interfered with the independence of the NPA. He points out that in terms of the NPA Act such interference is made a criminal offense carrying a jail sentence of 10 years and thus thus that Maduna could perhaps be charged and convicted of such an offense.
What is clear from these passages is that Zuma is a very lucky man. If the President and the Minister had been more ruthless and more principled, they would not have interfered and Zuma would have been charged with Shaik. Chances are that he would now be serving out a 15 year jail term instead of being poised to becoming President of the country.
The President only withdrew his support for Zuma, it seems, when Zuma refused to resign as Deputy President and refused to quietly go into retirement. That is when pressure was brought to bear on the NPA to charge Zuma. If the udge is correct, this would be an outrageous abuse of the NPA for political purposes and would confirm Zuma’s view that he was set up.
But at the same time it would be clear that Zuma is probably only a free man today because Mbeki was not ruthless enough and did not want to see his comrade languishing in jail for 15 years. It still leaves a dark cloud over Zuma and his involvement in corruption and fraud. If Zuma is not charged again, journalists should ask him for his explanation on these matters at every press conference. South Africa deserves answers.
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