We shouldn’t have to repeat this, but we will: Judge Chris Nicholson made no finding on the guilt or innocence of Jacob Zuma, and he said so himself. Twice. And although he identified serious political meddling in the prosecution process, he made no finding as to whether it is possible for Zuma to have a fair trial.
What Nicholson did say was that the National Prosecuting Authority could cure the defects in its procedural approach by inviting representations from Zuma and recharging him.
That the NPA has chosen to appeal against the judgement should not provoke outrage. While the ANC’s born-again defenders of the judiciary see the appeal as evidence of fresh meddling by Thabo Mbeki, and have threatened a national stayaway in protest, there are more innocent explanations.
The NPA may feel that it would be difficult for a fresh prosecution of Zuma to succeed in the shadow of Nicholson’s ruling and may believe it has a reasonable prospect of having it set aside. Or perhaps it is worried about the impact of his interpretation of the NPA Act and the Constitution on other cases or both.
The point is that the NPA has the same right of recourse to higher courts that both Zuma and Schabir Shaik have exercised repeatedly. That is the nature of the process that Zuma himself tells us he respects. Until there is a ruling that the state is incapable of prosecutorial independence that process must continue, however uncertain and unpleasant it may be.
The Cabinet and Mbeki, too, have said they will try to have Nicholson’s findings on executive interference deleted from the judgement. If they can find a legal mechanism to do so, that is also their right.
That said, the Cabinet’s assertion this week that there was no executive interference in this or any other case is nothing short of ludicrous. We know, thanks to Vusi Pikoli’s brave stance at the Ginwala commission, that there has been executive interference of the most direct and damaging kind in the prosecution of police national commissioner Jackie Selebi.
History will surely have to present a prima facie case that Mbeki, Bulelani Ngcuka and Penuell Maduna created the conditions for Zuma to get off the hook and the Scorpions to be shut down.
If Mbeki was right to fire Zuma in 2005, he cannot complain when he, too, is held to account on the basis of court proceedings to which he was not a party. And held to account he will no doubt be.
The NPA has made a hopeless mess of the Zuma case, starting with Ngcuka’s devious announcement that there was a prima facie case against the then deputy president but that it was unwinnable. The suspicion must be that this was Mbeki’s attempt to spare the ANC the trial and possible imprisonment of one its top leaders, while convicting him in the court of public opinion.
But that is no reason not to bolster the independence of the prosecuting authority and shield it against political interference in future. Indeed, the central thrust of Nicholson’s judgement was that abuse of the courts by politicians to advance their sectarian agendas is a grave threat to South Africa’s democratic order.
The Zuma camp poses just as much of a threat as Mbeki and his acolytes ever did: the striking thing about the ANC president’s supporters is that they applaud the judiciary when it rules in their favour and trash it venomously when it rules against them.
What is needed is legislation to further insulate the NPA against political interference, in particular through the transparent public selection of its national director.
Beacons of hope
It happened in a week in which the world’s football boss used fancy words to tell us just how useless Bafana Bafana is; when South Africa’s cricket boss resigned after yet another war of words between the sport’s administrators; and when the Springbok rugby camp was still reeling from sex tape allegations.
On the other side of the world our paralympic team was living their dreams, defying the odds and kicking dust in the eyes of countries such as Russia, Canada and Germany. Team South Africa finished sixth in the world. It will return home with 30 medals, 21 of them gold. What an absolutely brilliant achievement by our nation!
After a dismal performance by our able-bodied athletes, who managed to scoop just one silver medal in Beijing, the paralympic team carried the baton and reminded us how proud, competitive and courageous South Africans can be. They lifted the spirits of a glum nation that has become accustomed to infighting, backstabbing and incompetence among our sport bosses and administrators.
It has been said over and again this week that the success of our paralympic athletes can be partly ascribed to the commitment of the administrators and coaches who share in their goal — to be the world’s best. Not even the furore over their unbecoming official clothes or unsuitable accommodation in Beijing could dent their focus and enthusiasm.
Natalie du Toit, Oscar Pistorius, Hilton Langenhoven, Fanie van der Merwe, Philippa Johnson, Ernst van Dyk, Teboho Mokgalagadi and all the others: you’ve done us proud and reminded us what it feels like to be a winning nation. We salute you.
And please send copies of your recipe for success to Safa House, Newlands and Ellis Park. Urgently.