I have just been reading the Supreme Court of Appeal’s judgment in the case between Jacob Zuma and the National Director of Public Prosecutions which was handed down yesterday. This case is an appeal from a decision handed down by Judge Nicholson in the Pietermaritzburg High Court in September 2008. Judge Nicholson found, among other things, that there was political interference in Zuma’s prosecution and ultimately ruled that the decision to prosecute Zuma should be set aside. This earlier judgment led to Thabo Mbeki’s resignation as President and paved the way for Zuma to become President (at some point). Judge Nicholson’s judgment was controversial, to say the least, at it wasn’t surprising when just about everyone maligned in the judgment sought to appeal to a higher court to address the allegations against them. That pretty much led to the NDPP’s appeal to the Supreme Court of Appeal.
Yesterday’s judgment was handed down by Judge Harms, the Deputy President of the Supreme Court of Appeal. The scope of the case before him and his fellow judges was as follows:
THE SCOPE OF THE CASE
[8] It would be naïve to pretend that we are oblivious to the fact that Nicholson J’s judgment has had far-reaching political consequences and that there may be an attempt to employ this judgment to score political points. It is accordingly necessary to state at the outset what the case is about as opposed to what it is not about. An applicant is required to set out his case in the founding affidavit. This Mr Zuma did. He asserted that his case for the setting aside of the two decisions to prosecute him was premised on two bases, something he confirmed in his replying affidavit.
[9] He relied in the main on s 179(5)(d) of the Constitution, which s 22(2)(c) of the National Prosecuting Authority Act 32 of 1998 (the NPA Act) repeats. It provides in summary that the NDPP may ‘review’ a decision to prosecute or not to prosecute, after consulting the ‘relevant’ Director of Public Prosecutions (the DPP) and after taking representations from the accused, the complainant and any other relevant person. His case in this regard was simple: the Pikoli and Mpshe decisions to prosecute amounted in each instance to a review of the Ngcuka decision not to prosecute him; they were made without his having been invited to make representations in fulfilment of a constitutional requirement and they were, consequently, invalid. It matters not that he was able, if he so desired, to make representations – his complaint was that he had to be invited to make them.
[10] The second and alternative ground on which he relied was that he had a legitimate expectation to be invited to make representations before any decision was taken to change the Ngcuka decision. In this regard he relied principally on s 33 of the Constitution, which deals with just administrative action. The expectation, according to the founding affidavit, arose from the content of Mr Ngcuka’s press release when he announced his decision not to prosecute him and from some other non-contentious facts that will be detailed in due course.
[11] From this it is apparent that Mr Zuma’s case depended, as far as the first ground is concerned, on an interpretation of the Constitution. In regard to the second it depended in essence on whether s 33 of the Constitution applied and, if so, on the meaning of the Ngcuka press statement. (The ultimate argument was somewhat different but does not affect the general purport of the point now under discussion.) These are all legal issues based on common cause facts.
[12] Mr Zuma made it abundantly clear that he did not wish to impugn the decisions themselves, and that his application was not concerned with the reasons and motives for the decisions: it related only to the procedural requirements for making them. He implied that he might attack the merits of the decisions in separate proceedings. In spite of this explicit statement of intent, Mr Zuma introduced a large number of facts that related to the merits of the decisions. The NDPP contended that they were irrelevant.
[13] It follows from this that, as the trial judge recognised, ‘political meddling’ was not an issue that had to be determined (para 229 of his judgment). Nevertheless, a substantial part of his judgment dealt with this question; and in the course of this discussion he changed the rules of the game, took his eyes off the ball and red-carded not only players but also spectators. Lest his judgment be considered authoritative it will be necessary to deal with these matters.
[14] However, it must be understood that this aspect of the judgment is not about the guilt or otherwise of Mr Zuma or whether the decision to prosecute him was justified. It is even less about who should be the president of the ANC; whether the decision of the ANC to ask Mr Mbeki to resign was warranted; or who should be the ANC’s candidate for President in 2009. More particularly, this aspect of the judgment is not about whether there was political meddling in the decision-making process. It is about whether the findings relating to political meddling were appropriate or could be justified on the papers.
Judge Harms took a very dim view of Judge Nicholson’s judgment and his failure “to adhere to some basic tenets, in particular that in exercising the judicial function judges are themselves constrained by the law. The underlying theme of the court’s judgment was that the judiciary is independent; that judges are no respecters of persons; and that they stand between the subject and any attempted encroachments on liberties by the executive”. Judge Nicholson exceeded his powers by considering issues that were not part of the case, colouring his judgment with his political views and generally failing to protect the sacrosanct independence of the judiciary. He received quite a slap on the wrist by Judge Harms! A good portion of the judgment is damage control. Judge Nicholson’s judgment carries authority and to the extent that is bad authority, a higher court has to correct it. This is what Judge Harms had to do on a number of fronts ranging from procedural issues to interpretation of various legal provisions.
Another key issue to be dealt with was whether the NDPP’s decision to charge Zuma (the most recent decision by the acting head of the NDPP) was taken in line with the Constitution. Zuma contended that there were procedural irregularities that undermined the decision to prosecute and which meant that the decision ought to be set aside. Judge Harms ruled that the section of the Constitution Zuma relied on to establish this was misinterpreted by his legal team and didn’t apply in any event. Ultimately Zuma couldn’t sustain his case before the the appeal court’s judges and the court ruled in the NDPP’s favour, setting aside Judge Nicholson’s judgment and substituting it with a new judgment upholding the NDPP’s appeal against Judge Nicholson’s judgment and ordering Zuma to pay legal costs.
This judgment is important because it tackles issues of criminal procedure and the independence of the judiciary seen from within the judiciary. It also means that Zuma could well face prosecution again and if he does, the ANC will have to come up with a plan if Zuma is elected President while the prosecution proceeds. Zuma could spend a fair amount of his time as President sitting in a court room defending himself. That is hardly an ideal situation because it severely hampers the government’s ability to function effectively. It also means that if Zuma is convicted as a sitting President he will be impeached by Parliament (at least he should be).
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A while ago I wrote a two part series of posts for the Times in a past life as a blogumist. The first post was titled “
