Bulelani Ngcuka has finally fulfilled his detractors’ greatest fears — or so some legal minds believe. He, they say, has put politics before the law.
Durban attorney Saber Ahmed Jazbhay said businessman Schabir Shaik may have a constitutional case against the Scorpions in terms of the right to equality before the law.
The decision to prosecute Shaik and let Deputy President Jacob Zuma, also implicated in alleged arms deal corruption, off the hook, ”smacks of a political decision” and not a legal one, said Jazbhay.
He said the Scorpions’s ”nebulous” response (saying there was a prima facie case against Zuma but it was not ”winnable” in court) set a bad precedent.
There was, however, legal precedent, he said, in a case in which the Constitutional Court had pronounced on the principle of equality before the law.
”When [Nelson] Mandela released women prisoners in 1997, the male prisoners decided to take him to court on the basis of not being equal before the law, because they [the men] were not being released,” Jazbhay said.
”The Constitutional Court found in favour of Mandela. Its rationale was that women had a different role in society as mothers and that their right to dignity had been violated.
”In this [Shaik] case, I don’t know what the rationale is. In my opinion, Schabir has a constitutional right to ask, ‘Why me and not Zuma?’ That would force the Scorpions to reveal their hand.”
On the other hand, said Jazbhay, the issue of a ”prima facie case” had been blurred.
”There is prima facie and concrete prima facie. What the Scorpions have is a prima facie case like [the state] had against [chemical warfare expert Dr Wouter] Basson, who was later exonerated. Here they are simply closing the door to open it at a later date.
”With regard to Shaik, the Scorpions seem to believe that they have a concrete prima facie case against him.”
A senior lawyer, who spoke to the Mail & Guardian off the record, said Ngcuka had painted himself into a corner by not fully disclosing his reasons for not charging Zuma but going for Shaik.
”It must be right in principle that Bulelani is entitled not to give reasons. But this is a person in high political office. Maybe there is a need for him to say what caused him to take the decision. Even if it is only to allay public concerns that there may have been political considerations.
”It is a case of justice not only being done, but also being seen to be done.”
He said that, as things stood, Zuma was unlikely to have much recourse. He would not, for instance, be able to gain insight into the Scorpions’s decision via the access to information Act, which enables individuals to gain access to information held by the state.
This is because the decision to prosecute falls under administrative action, which is expressly excluded from the information act.
”One can understand the reasons for this, for example to protect witnesses and certain types of information,” he said.
Wits University law professor Stephen Tusons said it was ”inappropriate” to decline to prosecute based purely on a denial by the suspect.
”On [Ngcuka’s] own account, there is a prima facie case and no explanation from Zuma other than a denial. It is not good enough to say that prospects of a conviction are poor.
”A prima facie case on the merits can harden prospects for a conviction in the absence of a reasonable explanation,” said Tuson.
He doubted, though, whether Shaik would be helped much by claiming that going for him and letting Zuma off the hook amounted to selective prosecution.
”It depends on the strength of the case against him and against Zuma,” said Tuson — which will be revealed as the prosecution of Shaik proceeds.