Quote of the week
Mr Zuma is no ordinary litigant. He is the former President of the Republic, who remains a public figure and continues to wield significant political influence, while acting as an example to his supporters… He has a great deal of power to incite others to similarly defy court orders because his actions and any consequences, or lack thereof, are being closely observed by the public. If his conduct is met with impunity, he will do significant damage to the rule of law. As this Court noted in Mamabolo, “[n]o one familiar with our history can be unaware of the very special need to preserve the integrity of the rule of law”. Mr Zuma is subject to the laws of the Republic. No person enjoys exclusion or exemption from the sovereignty of our laws… It would be antithetical to the value of accountability if those who once held high office are not bound by the law.
Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others (CCT 52/21) [2021] ZACC 18
Zuma 1 – Mbeki 0
After listening to most of the judgment by Justice Chris Nicholson this morning, my first response is that this judgment is a stinging slap in the face of President Thabo Mbeki, his Minister of Justice, the entire cabinet and – perhaps with the exception of Vusi Pikoli – the National Directors of Pubic Prosecution.
A court has now for the first time made a finding confirming what many people have suspected, namely that Mbeki and his cabinet have interfered in the decision to prosecute Zuma to gain a political advantage in a political battle for the position of ANC President and that the constitutionally guaranteed independence of the NPA has been fatally breached in the process.
Justice Nicholson has confirmed that the NPA should act without fear favour or prejudice when deciding on whether to prosecute and individual and that it has failed to do so in the case of Zuma. He seemed to suggest that the NPA Act, which allows for the National Director to be fired by the President, may well be unconstitutional and that the President has abused his power and breached the Constitution by acquiescing in the undermining of the independence of the NPA.
President Mbeki has in effect been found to have breached the Constitution.
In an ordinary democracy, a President would find it difficult to survive such a rebuke from a court. President Mbeki’s position has really now become untenable and if he had any honour he would resign. The judgment would also rekindle calls by some in the ANC and in the Alliance for President Mbeki to be fired and it will be interesting to see how this plays out politically.
Mr Zuma is of course not in the clear, as the judge made it clear that his judgment in no way comments on the advisability of a decision of the NPA to re-charge Zuma or of the chances of success for an application for a permanent stay of prosecution.
Even if Zuma is not re-charged he will obviously still have an ethical (if not a legal) cloud hanging over his head and at the very least he will have to try and show to the nation why he would not have been found guilty had he been charged. Otherwise most of us will continue to wonder whether he might not have been corrupt after all and might not have given an opening to President Mbeki to abuse the system to get rid of him.
But the decision today strengthens both his political and legal hand. Politically, his claim of a political conspiracy has in effect been vindicated by a court. He must now be odds on favourite to become President of South Africa next year. Legally the judgment seem to strengthen the argument that he would not be able to get a fair trial because of the political interference in the case (although this would still be a difficult argument to sell to a court.
After re-reading the case I will comment further on the stunning events of the day but if I was a Jacob Zuma supporter I would be off to buy a crate or two of beer for a long night of celebration.
