/ 28 November 2008

Nicholson ‘misinterpreted Constitution’

The National Prosecuting Authority’s appeal to overturn a judgement that African National Congress president Jacob Zuma was unlawfully charged started in the Supreme Court of Appeal in Bloemfontein on Friday.

Zuma made a low key arrival to the sound of a single siren, which went unnoticed by supporters gathered at Hertzog Square opposite the court building.

Dressed in a navy blue suit and tie, Zuma smiled as photographers rushed to get a picture of him before the hearing started at 9.45am.

Surrounded by bodyguards, Zuma commented on the large number of journalists gathered to see him before walking up the steps and disappearing into the court building.

Supporters started arriving in buses shortly after both legal teams arrived at the court.

Moments later, Zuma entered court one, was greeted by his legal team and took his seat next to his attorney Michael Hulley.

Misinterpreted Constitution
Zuma was charged with racketeering, money-laundering, corruption and fraud relating to a multibillion-rand government arms deal in 2005, but that case was struck from the roll in 2006. He was recharged in December 2007 and on September 12 was vindicated by Judge Chris Nicholson.

Advocate Wim Trengove kicked off proceedings by attacking Nicholson’s interpretation of the Constitution.

According to Trengove, Nicholson misinterpreted section 179 (5)(d) of the Constitution, which gives the national director of public prosecutions (NDPP) the power to review a decision by a provincial director of public prosecutions (DPP) to prosecute or not.

When this happens, the Constitution allows for accused persons to make representations to the NDPP before he decides whether to recharge.

Nicholson ruled that in Zuma’s case, former NDPP Bulelani Ngcuka’s decision not to prosecute the former deputy president was reviewed by his predecessors, Vusi Pikoli and acting NDPP Mokotedi Mpshe. He found that Zuma should have been given an opportunity to make representations to Pikoli and Mpshe before recharging him.

But Trengove disagrees with this approach, saying that the very essence of the section is to strike a balance between the powers of the NDPP and the prosecutorial authority of DPP’s, and wasn’t primarily there to protect and accused person’s rights.

‘The section is not part of the Bill of Rights, where the rights of an accused are catered for,” said Trengove.

The sound of vuvuzelas could be heard in the courtroom where five appeal judges, led by acting president of the court Louis Harms, was listening to Trengove.