The Scorpions’ decision to prosecute African National Congress (ANC) president Jacob Zuma on fraud and corruption charges was not legal, Judge Chris Nicholson found in the Pietermaritzburg High Court on Friday.
The judge emphasised that his ruling did not relate to Zuma’s guilt or innocence, but was merely on a procedural point.
He had strong words for the National Prosecuting Authority (NPA), saying it would have been wise for the NPA to allow Zuma to make representation at the time of him being recharged.
”I believe the NDPP [National Directorate of Public Prosecutions] ought to have heard the applicant’s representation,” Nicholson said.
He also said that Zuma’s claims that there were political undercurrents in his prosecution were not completely unbelievable.
Outside the court, thousands of supporters cheered as news of the judgement filtered through, while inside the court, Zuma was congratulated by people queuing to shake his hand.
Immediately after the judgement, ANC spokesperson Steyn Speed told the Mail & Guardian Online that the ANC welcomed the judgement. ‘It vindicates the position that we have taken of repeated violation of dignity and rights of Mr Zuma,” he said.
Speaking amid loudly celebrating Zuma supporters in Pietermaritzburg, ANC Youth League spokesperson Floyd Shivambu said: ”We came here to celebrate and we are going to celebrate. This [the judgement] exposed Thabo Mbeki and everybody who did this to him [Zuma].”
Congress of South African Trade Unions (Cosatu) spokesperson Patrick Craven said he was very happy with the judgement. ‘Not just because of the specific ruling that obviously was in favour of Mr Zuma, but also because of some points he [the judge] made that implicate what we have been saying about political influencing.â€
He said the judge had made it quite clear that there had been political influencing in this case.
The charges
Zuma faces a charge of racketeering, four charges of corruption, a charge of money laundering and 12 charges of fraud related to the multibillion-rand government arms deal. He was charged in 2005 but that case was struck from the roll in 2006. He was recharged in December 2007.
The ANC leader’s court application to have the decision to prosecute him declared unlawful should ”not be lightly entertained”, Nicholson said as he started handing down his lengthy judgement.
In August, state advocate Wim Trengove, SC, had told the court the decision by NPA acting head Mokotedi Mpshe to recharge Zuma in 2007 should be viewed independently of the move to charge him in 2005.
”The current decision [by Mpshe] was a decision that was taken on a clean slate,” Trengove had said in the state’s opposition of Zuma’s court bid.
Zuma’s legal team had contended the charges should be dropped because the state had not offered him the opportunity to make representation when it decided to charge him again.
The Zuma camp had argued that the Constitution guaranteed the right to make representations when the NPA reversed a decision, but Trengove had told the court that Zuma should not even have argued about the decision to charge him in 2005, because that case was scrapped from the court roll by Judge Herbert Msimang in 2006.
On Friday, Nicholson quoted lengthily from other judgements on similar cases, but said this case was different from those cited by Trengove.
He traced the history of the investigation against Zuma back to 1999 when Independent Democrats leader Patricia de Lille tabled allegations of arms-deal corruption in Parliament, and the subsequent conviction of Zuma’s financial adviser Schabir Shaik.
The judge said the country needs to rid itself of the ”cancer that is devouring our body politic”, and that political infighting ”is not a concern of this court”.
‘Bizarre’
Zuma claims that the decision to prosecute him was a reversal of a decision taken by Ngcuka, who announced in August 2003 that the National Prosecuting Authority would not prosecute Zuma because it did not believe that it had a ”winnable case”. But after Shaik was found guilty of corruption in 2005, the state decided to charge Zuma after all.
It was bizarre that Zuma was not charged alongside Shaik, said Nicholson, if it was true that there was prima facie evidence against him. He said the crimes of bribery that former national director of public prosecutions Bulelani Ngcuka had spoken of were ”bilateral” — involving another person — and it was ”most strange” not to charge Zuma as a bilateral offence cannot be done alone.
The failure to prosecute Zuma with Shaik ”brought the justice system into disrepute”, Nicholson told the court.
The judge said Mbeki’s decision to fire Zuma after the Shaik corruption conviction was unfair and unjust, but not illegal given his powers to appoint his Cabinet and his deputies. He added that Zuma believed his sacking was part of rivalry for the ANC presidency and a strategy to stigmatise him as corrupt.
Nicholson noted that, early into the investigation, Ngcuka had said he would take representations on the case and he never withdrew this offer. Zuma’s legal team did approach the acting national director of public prosecutions to find out whether the case was under review and were told that it was an ongoing investigation.
Referring to the friends of the court’s application for a commission of inquiry, Nicholson said he had no power to order this. Only the president had these powers, Nicholson said, but he did suggest a commission of inquiry into the arms deal.
Earlier this year, a Constitutional Court challenge by Zuma failed. He contested the lawfulness of search-and-seizure operations by the state.
Emotional day
Emotions had been running high in the build-up to Zuma’s court appearance on Friday. A pro-Zuma march turned violent in Durban on Wednesday, and stones were hurled at police and vehicles damaged.
Hundreds of supporters had gathered outside the Pietermaritzburg High Court on Friday morning and sang songs backing Zuma before the court session began. The judgement was broadcast to those outside the court and on national television.
The mood in the courtroom was jovial as almost 40 photographers and television camera operators were briefly allowed to take pictures of the legal teams and senior members of the ANC seated in the gallery.
The entire ANC national executive committee was seated in the front row, behind the witness box where Zuma was standing.
In Gauteng, a planned picket on Friday by members of the ANC, Cosatu and the South African Communist Party outside the Johannesburg High Court did not take place.
Cosatu spokesperson Siphiwe Mgcina said the Johannesburg metro police had approved the protest pending the approval of the chief judge. ”We were only informed this morning that the chief judge refused,” he said.
About 200 Zuma supporters, many in ANC T-shirts, demonstrated outside the offices of the National Prosecuting Authority in Cape Town on Friday morning.
Obstacle
The case is the biggest obstacle to Zuma succeeding Mbeki. A long trial might mean Zuma’s legal battle overlaps with the general election in 2009, which he would almost certainly win, and the combination could increase political instability in Africa’s biggest economy.
While the uncertainty makes investors uncomfortable, they expect the case to drag on and are more focused on the effects of global market turmoil, said Razia Khan, regional head of research for Africa at Standard Chartered, this week.
Zuma denies the charges of money-laundering, corruption, fraud and racketeering but has said he will step down if convicted.
He has, however, made a remarkable political comeback despite the damage to his image. He has been more decisive than Mbeki on the post-election turmoil in Zimbabwe. He has stayed close to unions, promised to help the poor and courted foreign investors.
On Tuesday this week, Zuma reaffirmed his belief ”in the rule of law, the independence of the judiciary and the constitutional mandate of our judiciary to be the final arbiters in disputes”.
”We will never undermine these institutions. We seek to protect and strengthen them, as the ANC has always done since 1912,” he told an audience at the University of Johannesburg.
On Wednesday, ANC Youth League leader Julius Malema was quoted by Independent Newspapers as threatening to ”eliminate” forces opposed to Zuma, but saying of Nicholson: ”We believe in the judge because he looked very sober.”
He added confidently that ”Zuma will be released on Friday”.
There was outrage this week when a newspaper published a Zapiro cartoon of Zuma undoing his trousers and appearing to be ready to rape a woman representing the justice system. Zuma was acquitted of rape in 2006.
The charismatic politician’s supporters say he is the victim of a political witch-hunt by backers of Mbeki.