Why Nicholson’s judgement might be wrong

James Myburgh – who used to be a researcher for Tony Leon – provides a facinating analysis of the Nicholson judgment on Politicsweb, which will have Mr Zuma’s supporters howling with outrage. He makes the (to my mind accurate point) that the legal basis for the judgment can be faulted, explaining as follows:

The key legal question facing the court was whether Jacob Zuma had a right to make representations to the National Prosecuting Authority before it decided to reinstate the charges against him. This related to a clause in the1996 constitution, replicated in the NPA Act, whereby the (yet to be created position of) National Director of Public Prosecutions was given the power to review a decision by a Director of Public Prosecutions (the soon to be former Attorneys General.)

Under the previous 1992 Act the Attorneys General had enjoyed completely statutory autonomy. The fear of the opposition parties was that a political appointee in the NDPP post – the ANC had initially wanted this to be a cabinet position – would use this power of review to exert political control over prosecution decisions by his more independent-minded subordinates. As a result of their concerns certain checks and balances were built into the system in section 179(5)(d). These required that if the NDPP was minded to overturn a decision of a subordinate he first had to consult the relevant DPP and take representations from the accused, the complainant, as well as other persons he thought relevant.

In his founding affidavit Jacob Zuma contended that the decision to press charges against him in late December 2007, as well as the June 2005 decision, “constitutes a review of an reversal of a earlier decision” by the National Director not to charge me taken during August 2003. As such the National Director was required to take representations from him, and his failure to do so rendered the decision invalid.

In his answering affidavit for the state Johan du Plooy stated that in the view of the NPA the requirements of section 179(5)(d) were only applicable when the National Director overruled a subordinate (a Director of Public Prosecutions.) DPPs themselves were perfectly able to reverse their own decisions whether to prosecute or not to prosecute (for example, when further evidence came to light.) It would therefore be absurd to expect the NDPP to have to invite representations every time he reversed an earlier decision “despite the fact that under section 20(1) the NDPP and DPP are assigned identical statutory powers.”

The provision in the NPA Act and the Constitution that an accused must be afforded the opportunity to make representations when a decision by a DPP to prosecute is reviewed by the National Director of Public Prosecutions (NDPP), can therefore be read as a safeguard against abuse of office by the NDPP. The need to safeguard against abuse will not arise when the decision was taken by the office of the NDPP himself and it was therefore nonsensical to require him to hear representations from the accused (in this case Zuma) if his own office made the original decision.

More controversially, Myburgh then argues that the decision to charge Jacob Zuma cannot be ascribed to political interference by President Mbeki, but rather by the cessation of political interference. Money quote:

The decision by Vusi Pikoli, shortly thereafter, to reverse his predecessor’s previous decision and have Zuma charged was consistent with the original wishes of the (non-partisan) professionals who ran the investigation into Shaik’s and Zuma’s affairs. The chances of a successful prosecution had also been immeasurably strengthened by new evidence that came out in the Shaik trial, as well as judge Hilary Squires’s ruling on the admissibility of certain key evidence.

Du Plooy states in his affidavit, “in the circumstances which prevailed after the Shaik trial, in which the State’s case has been so completely vindicated by the court and so obviously implicated the applicant in corruption of the most egregious kind, it is almost inconceivable that any reasonable prosecutor would not have come to the same decision.”

Counterfactually: if the NPA had decided not to charge Zuma, what then? Would this have been a sign of it acting independently, without fear or favour? It is possible that Mbeki was still powerful enough, at that point, to have prevailed upon the NDPP not to proceed with the prosecution. That he chose not to – even out of the worst and most cynical of motives – is surely a sign of non-interference (not the opposite).

I must say, the argument is quite persuasive and I can well imagine the Constitutional Court agreeing with this line of reasoning. Read the whole article and decide for yourself.

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