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.
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.BACK TO TOP