The findings of Judge Chris Nicholson of Friday, 12 September 2008 will profoundly impact on South Africa. It is probably the most important judgment delivered in this country in the past many years.
What is macabre is that the NPA has decided to lodge their intent to appeal the judgment. The NPA, represented by Billy Downer SC and Wim Trengove SC in their battle against ANC President Jacob Zuma, has been given a long overdue chastising for their maverick behaviour - behaviour which is not limited to the Zuma case.
It is further astounding that two Senior Counsel did not recognise the procedural irregularities perpetrated by the three consecutive NDPP's and allowed themselves to be led by such irregularities. The NPA has also dismally failed to uphold the Constitution and to respect the fundamental right of Zuma to be heard on the decision to review the earlier decision not to prosecute him. Judge Nicholson was at pains to point out the contrast between the old Apartheids legislation which did not make provision for the right to be heard which is a requirement entrenching fair administrative action which is again based on the Constitution and the legislation promulgated in terms of Promotion of Administrative Justice Act providing for fair administrative action. The Court was not merely dealing with a technicality, but a fundamental right which was infringed.
The NPA's case against Zuma has now twice been dismissed - once struck from the roll by Judge Msimang, stating that the state's case has "limped from one disaster to another" - and now by Judge Nicholson, in the strongest condemnation of the Constitutional bashing behaviour of the President, members of the Executive and the leadership of the NPA. Yet in a "bizarre" fashion, they soldier on for a cause which can only be their own.
Judge Nicholson's findings are tantamount to prima facie evidence of contraventions of the NPA Act perpetrated by inter alia, Mbeki, Maduna and Ngcuka - contraventions so serious that they should be pursued as the Act provides for a maximum sentence of ten years for each perpetrator found by Judge Nicholson to be guilty of irregular interference in the administration of justice.
It was on the suggestion of prima facie evidence and Zuma's conviction in absentia during the Shaik trial - which Judge Nicholson strongly and correctly condemned in terms of South African Law - that Mbeki dismissed Zuma as Deputy President of the Republic.
Mbeki relied greatly on Judge Squires' judgment during his 14 June 2005 speech. In his speech Mbeki stated that: "...the court has made findings against the accused (Shaik) and at the same time pronounced on how these matters relate to our Deputy President, the Hon Jacob Zuma, raising questions of conduct that would be inconsistent with expectations that attend those who hold public office."
Mbeki continued: "I trust that what we have done today, and will do in future, together, will continue to strengthen our democracy, reinforce the accountability of those who hold public office, and deepen the confidence of the masses of our people in their elected representatives and our organs of state." Judge Nicholson has found that Mbeki has undermined organs of state and must therefore be held accountable. The behaviour he leveraged unjustly (according to Judge Nicholson) against Zuma should therefore apply to him also.
At the same time Mbeki and his legal advisors failed to realise that the judgment of Judge Squires is not a judgment against Zuma. This is a basic principle of our law as Zuma was not a party to the case and was not given the opportunity to state his defence - a deliberate decision by the NDPP not to afford Zuma the opportunity to be joined in the proceedings in order to defend himself.
In such an endeavour, the rights of South Africans must be protected against the systematic abuse, detailed in the judgment, of organs of state by the President and his purported henchmen - the only way to achieve this may be to table a Motion of No-Confidence in the National Assembly to remove him from office.
If the behaviour found by Nicholson is not addressed, the application of the principle of the separation of powers will remain at the whim of those who have seemingly been using it most effectively for personal gain.
As a footnote, it is interesting to note that during his June 14, 2005 Speech Mbeki stated that "... the Deputy President has yet to have his day in court." At that stage, as pointed out by Judge Nicholson, the NPA refused to charge and prosecute Zuma, so there was no prospect of Zuma's impending day in court - maybe the President knew something we did not.
ADV W H HEATH SC
Chief Executive
Statement issued by Heath Executive Consultants September 18 2008
