Ernest Mabuza
13 January 2009
Johannesburg — PIETERMARITZBURG High Court Judge Chris Nicholson was supposed to deal with just two issues on which African National Congress leader Jacob Zuma relied in his application to set aside the decision by acting prosecutions chief Mokotedi Mpshe to prosecute him.
However, the Supreme Court of Appeal (SCA) said yesterday Nicholson had failed to confine his judgment to the two issues before the court.
He failed by deciding matters that were not relevant, by making gratuitous findings against persons who were not called upon to defend themselves, by failing to distinguish between allegation, fact and suspicion, and by transgressing the proper boundaries between judicial, executive and legislative functions.
In a unanimous decision written by SCA deputy president Louis Harms, the appeal court said Zuma relied on section 179(5)(d) of the constitution, which states that a national director of public prosecutions (NDPP) might review a decision to prosecute or not to prosecute after consulting the relevant director of public prosecutions and after taking representations from the accused.
The alternative ground on which Zuma relied was that he had a legitimate expectation to be invited to make representations before any decision was made to change the decision of former national director Bulelani Ngcuka, who had decided in 2003 not to charge Zuma.
Zuma also introduced allegations concerning a political conspiracy to prosecute him to show that the decision not to ask for his representations was deliberate and politically motivated.
Harms said whether the failure to provide Zuma with a hearing was deliberate or politically motivated had nothing to do with his causes of action.
"He was as a matter of law, either entitled to a hearing or he was not. If he was entitled to one, the reason for the failure to afford him one is completely immaterial," the judge said.
Harms said although Nicholson recognised that "political meddling" was not an issue that had to be determined, a substantial part of his judgment dealt with that question.
"... 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," Harms said.
Harms said judges as members of civil society were entitled to hold views about issues of the day and they might express their views provided they did not compromise their office. But they were not entitled to inject their personal views into judgments or to express their political preferences.
After the conviction of Zuma's former financial advise r Schabir Shaik in 2005, NDPP Vusi Pikoli -- now suspended from office -- charged Zuma.
Harms said Pikoli's decision came to nought when Judge Herbert Msimang struck the matter off the roll when the prosecution could not proceed with the case in 2006. Acting NDPP Mokotedi Mpshe charged Zuma again in December 2007.
Harms said the main issue between the parties was whether the requirement of "taking representations" from Zuma applied to the facts of this case.
He said section 179(5)(d) dealt only with the review of a decision by the relevant director of public prosecutions and did not include a reconsideration of the NDPP's own decisions. The judge said what went before the Mpshe decision was spent and a new decision was required. "Mr Zuma's reliance on the decision was misplaced," he said.
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