African National Congress deputy president Jacob Zumaâ€™s legal team is gearing itself up to lodge an application for a mistrial on the grounds that the state has violated legal procedure, should the National Prosecuting Authority (NPA) recharge Zuma with corruption.
The decision to do so stems from the recent judicial blunder that saw five eminent judges of the Supreme Court of Appeal wrongly attributing a controversial phrase to Justice Hilary Squires, the trial judge who convicted Zumaâ€™s erstwhile financial adviser, Schabir Shaik.
The judges—appeal court president Justice Craig Howie, Justice Lex Mpati, Justice Mohamed Navsa, Justice Jonathan Heher and Justice Peter Streicher—said in a subsidiary ruling to the main appeal judgement that Squires found that Zuma had “a generally corrupt relationship” with Shaik. Zumaâ€™s legal team believes that the appeal courtâ€™s blunder suggests that not even judges are immune to the influence of the media and that this precludes Zuma from having a fair trial.
In a letter to the Weekender this week Squires said he had never used the words “generally corrupt relationship”. He added that the phrasing came from a submission by the prosecution during the Shaik trial.
The Concise Oxford English Dictionary defines a mistrial as “a trial rendered invalid through an error in proceedings”. In Zuma case this argument, while supported by other considerations, would rests squarely on the court ruling on the legitimacy of the search and seizure operations.
Zumaâ€™s attorney, Michael Hulley, said the team has been considering bringing an application for a mistrial, and that the appeal courtâ€™s fumble has added weight to its case. He said the application should not surprise anyone at the NPA “because we have always indicated that we would take this route and follow it right to the Constitutional Court, especially if we believe there is a prospect of winning it”.
“At the moment we are not aware exactly what charges the state would bring against Zuma, but should they bring one of corruption emanating from the findings in the Shaik matter, then we will spring into action,” he said.
Hulley said the application for the mistrial would be brought “almost immediately” once Zuma is recharged and that the hearings into the mistrial could take six to eight months, delaying a main case.
Hulley indicated that the application for a mistrial would be based on the following issues:
The Mail & Guardian has heard from sources in the NPA and the Zuma camp that Scorpions boss Vusi Pikoli is already in possession of charges against Zuma, but is still deciding whether the NPA should indict him now or wait for the outcome of the search and seizure appeals being considered in the courts.
Judges are not gods
Retired KwaZulu-Natal High Court judge Hilary Squires shook the media and legal fraternity last weekend when he revealed that he had not made a finding that ANC deputy president Jacob Zuma and his former financial adviser Schabir Shaik were in a “generally corrupt relationship”.
The phrase has been used for over a year with everyone, including the Supreme Court of Appeal quoting it.
The appeal court, which used the phrase in its judgement dismissing Shaikâ€™s appeal against his conviction and sentence, has been accused of not bothering to read Squiresâ€™s judgement, leading to calls for the judges to be dismissed and comments by trade union federation Cosatu that they have prejudiced the chances of Zuma ever receiving a fair trial.
The Mail & Guardian spoke to the countryâ€™s top judges and legal minds about whether this was a storm in a teacup or an issue that could undermine confidence in the judiciary.
KwaZulu-Natal Judge President Vuka Tshabalala, said he established through the media that the Minister of Justice, Brigitte Mabandla, was hoping to establish facts behind the furore with him and Chief Justice Pius Langa.
He said he was not aware of what facts the minister wanted to establish with him. “I think what she was trying to say was she cannot commission an inquiry… As far as I am concerned the misquote has no fundamental bearing on the findings of the court in the Shaik case. The judges gave a whole judgement, meticulous in detail except for one phrase.”
Tshabalala had strong words for the appeal court judges saying their error had put the judiciary in virgin territory. “It is unusual that such an error occurs in a judgement. To my recollection it is the first time it has ever happened. I must note that it was caused by you [the media], it is the newspapers that started this whole problem.”
He would not, however, concede that judges were not immune to media reports. “I donâ€™t think so. Even in this case the phrase is not mentioned in the actual criminal judgement, but it is mentioned in passing in the judgement dealing with Shaikâ€™s assets.”
Advocate Norman Arendse, a senior counsel at the Cape Bar, said: “My first reaction was [to ask] why didnâ€™t Shaikâ€™s lawyers pick up that mistake? I am not privy to what they said in court ,nor did I read their Heads of Argument, but one would have expected such a potentially damaging use of words to be highlighted by Shaikâ€™s lawyers ... In the end we all assumed that those were the words used by Squires.
“The attribution would have been a significant mistake if it were not for the fact that the appeal courtâ€™s judges supported the use of such a phrase through their factual findings. It seems to me their extraordinary explanatory note (issued after the publication of Squiresâ€™s letter) shows facts that justify the use of those words, with or without attributing them to Squires. These include their finding that there was a relationship of mutual symbiosis between the two and it was based on Zuma being in a position of influence. They used the phrase ‘generally corruptâ€™ to characterise the relationship, but they were not saying it was a finding of Squires.
“The call that the bench who sat on the appeal should resign is totally outrageous. The judges who sat on that appeal are highly respected and have impeccable credentials.”
Advocate Dumisa Ntsebeza of the Black Lawyers Association said: “The issue shows that judges, even those of the Supreme Court of Appeal, can make grave errors.
“This should be an object lesson to those judges of the appeal court. As the Black Lawyers Association we have been concerned at the manner in which those judges have been dressing down black judges when they overturn their high court judgements. The language they used to criticise Judge John Hlophe and Judge James Yekiso in the Clicks case was a matter of concern to us.
“The appeal court judges have come across as being caustic and acerbic in the manner in which they criticised black judges. Their criticism seems even to subtract from the competence of those judges.
“Also, when they overturned Judge Phoswaâ€™s decision to grant bail to two young men, I got the impression they had not read his judgement but had only relied on the court proceedings records. So this would make it the second case where they had not read a high court judgement and yet pronounced on its merit.
“However, this error should not be used to undermine the judiciary. From this I hope society will understand that judges are not gods.”
Cathi Albertyn, director of the Centre for Applied Legal Studies, said there was an obvious error in the judgement, but that very little “turns upon this factual error”.
“They made their finding on facts and evidence and looked at the trial as a whole in making their final judgement,” she said. “The judgement was made regardless of the dreaded paragraph and stands alone.”
She added that the error was regrettable because it diverts attention from the judgement and people with political agendas have latched on to this error.
Albertyn felt the error did not affect the credibility of the appeal court in the long-run. She described the judgement as lengthy and reasonable.
She said action against judges are only taken in the most extreme cases, such as misconduct or corruption and that this error did not constitute any of those.“If there is enough evidence to charge Jacob Zuma, he should be charged,” she said. “This error does not show that he canâ€™t have a fair trial.”
She said the appeal court had done all it could to rectify the mistake and the media should report the judgement accurately, as the erroneous comment was not representative of it.