Harms's double whammy

Supreme Court of Appeal deputy president Louis Harms did more than reinstate 18 serious criminal charges against South Africa’s president-in-waiting. He also reminded Jacob Zuma of a 1971 judgement he would rather have ignored.

The 38-year-old ruling supports the idea that a prosecution can remain valid even if its motive is questionable. This was a serious blow to any plans Zuma might still have to apply for a permanent stay of prosecution.

On Monday Harms delivered the unanimous decision of a full Bench on the state’s appeal against Judge Chris Nicholson’s September 12 ruling that declared the charges against Zuma invalid.
Harms castigated Nicholson’s judgement in painful detail.

Part of the ruling focused on Nicholson’s interpretation of the relationship between the National Prosecuting Authority and the justice minister. Nicholson found there should be no relationship, with both performing their duties independently of each other.

In this context he slammed former justice minister Penuell Maduna for being present when former NPA boss Bulelani Ngcuka announced his decision not to prosecute Zuma, even though the state had established a prima facie case.

Harms differed with Nicholson’s interpretation. “Although national legislation must ensure that the NPA exercises its functions without fear, favour or prejudice, the minister must exercise final responsibility over the NPA and the NDPP [national director of public prosecutions] must determine prosecution policy with the concurrence of the minister.”

He then threw a spanner—ugly for Zuma and gorgeous for the state—in the works of Zuma’s theory that his trial is the product of massive meddling by former president Thabo Mbeki and his agents.

“A prosecution is not wrongful merely because it is brought for an improper purpose. It will only be wrongful if, in addition, reasonable and probable grounds for prosecuting are absent, something not alleged by Mr Zuma and which in any event can be determined only once criminal proceedings have been concluded.”

This Harms took from the 1971 ruling in Thompson v Minister of Police.

What Harms was effectively telling Zuma is that it does not matter if Mbeki abused the NPA to get him into the dock: if he has a case to answer, he must face the music. If political meddling occurred it will be dealt with at the end of the criminal trial.

This is a huge blow to Zuma’s strategy of bringing a permanent stay of prosecution application as soon as the state resumes its case against him.

The basis for his argument has always been that he is the victim of a nine-year-long conspiracy orchestrated by Mbeki and the NPA to prevent him from becoming president of the ANC and South Africa.

Harms’s puncturing of a possible permanent stay argument went further. He ruled that Zuma could not claim that he has been on trial for nine years and criticised the ANC president for claiming that Mbeki and suspended NPA boss Vusi Pikoli conspired during a trip to Chile in 2005 to have him prosecuted.

The SCA judgement finds that the legal proceedings against Zuma began in 2005, when Pikoli announced he would be charged. But they came to an end in 2006, when Judge Herbert Msimang struck the case from the roll.

In the current case the clock started ticking in December 2007 when Zuma was subpoenaed to appear in court in August the following year.

Zuma cited the Chile trip in his court papers before Msimang as proof of the conspiracy to get him behind bars.

Harms accepted the state’s explanation - that Mbeki and Pikoli were both in Chile, but had nothing to do with each other. “Whether Mr Zuma believes this or not is another matter; courts are duty-bound to deal with proven fact.”

The NPA has indicated that it is ready to resume the prosecution and February 5 has been mentioned as a possible date for Zuma to return to the Pietermaritzburg High Court.

Zuma’s allies have ruled out a plea bargain and it is doubtful that the state, after hearing representations from Zuma and the ANC, will agree to withdraw all 18 counts against the ANC president.

The state is not bound by any approach to the Constitutional Court to overturn the SCA judgement. It can proceed at the earliest available date and summon Zuma back to court for the third time.

Former judge Willem Heath, who advised the ANC on its representations to the NPA, criticised Harms’s judgement this week as “old school”.

“He took an old-school legal approach. You find that with older judges who gained experience before we became a constitutional dispensation. That’s why Nicholson differed. He gave a typical constitutional law judgement.”

According to Heath “a range of issues” in the Harms judgement provides a good basis for a Constitutional Court appeal.

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