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Society’s interest in corruption charges against Zuma overrides objections to imputed political motives in the case, says Eusebius McKaiser.
Johannesburg - Let’s assume the best legal scenario for the Zuma camp in the spy tape-inside-the-corruption case that refuses to go away.
Assume the Hawks or Scorpions or Ants or whichever biological creature investigated Zuma were taking orders from his political enemies. They wanted him never to become president. That was their chief aim. What, legally, follows from this?
Nothing dramatic follows.
A political motive behind a legally winnable corruption case should mean that the case can still go to court. This is because society has an overriding interest in not being stolen from, not being broken.
This social interest is surely greater than the potentially corrupt individual’s irritation with the motive of some of the investigators, especially if the investigators sit on evidence of prima facie corruption.
We know, in fact, they do have such evidence in this case because, before the charges were dropped against Zuma, the prosecuting authority told us it had evidence of a quality good enough to justify bringing the charges.
The only thing left is to spell out more precisely why a political motive behind a winnable case is irrelevant (for the benefit of one Mokotedi Mpshe, who dropped the charges).
I confess I also once held the mistaken view that if there’s a wicked motive behind a case (a motive not related to the pursuit of justice), then the case should be dropped.
My instinct was twofold: wickedly motivated cases incentivise investigators to abuse the legal system if we don’t throw such cases out when they come to light.
Furthermore, the integrity of the justice system requires that the system operate on the basis of honourable motives, just as society is expected to behave.
The prosecution of people on the basis of non-legal motives undermines the integrity of the legal system because it erodes the honour at the heart of the system.
Or so I argued a few years ago.
I have no clue whether Mpshe thought so too.
He cited some dodgy Hong Kong case as an authority on which he relied for his decision. It turned out, of course, that that was a case which was actually overturned on appeal (and this fact, by the way, is itself a good reason why Mpshe’s decision should be set aside!).
But let’s say Mpshe also actually holds the twofold reasons that I did a few years back.
Here is why he would be wrong, just as
I have turned out to be wrong upon reflection.
The “integrity of the legal system” must be weighed against the need for justice on the part of the aggrieved party.
In this case, the aggrieved party is society, from whom possibly billions had been stolen.
It would be weird to have a blanket rule that says one should always drop cases that stem from non-legal motives and ignore the right to access justice on the part of individuals, or society, who had been wronged.
The question then is one of how to weigh the need to ensure we don’t encourage the abuse of the legal system for political purposes while allowing society to exact justice from corrupt individuals.
In this particular case, it makes sense to push ahead with the main corruption case despite the political motives of investigators.
This is because the legal system, overall, contains mechanisms that Zuma can appeal to in order to deal with the political motive part of the saga.
First – and something Mpshe shouldn’t have missed – nothing stops Zuma, say, suing the State or anyone out to damage his name or career illegally. A case of this kind would ensure Zuma gets compensated for any illegal actions against him.
But this case could run at the same time as a case in which Zuma faces evidence of prima facie corruption.
Then Zuma could get justice and society could get justice.
The integrity of the legal system would be ensured, and society’s intrinsic interest in substantive justice would be protected.
Second, if there’s a case to answer in law, then the political motives of some investigators don’t undermine the legal system’s integrity fatally. Certainly not to an extent that justify pretending there’s no case to answer.
Third, from Zuma’s perspective, the only good legal complaint would be a fear that he will not get a fair trial.
But because the politically motivated investigators are not the judges who decide the case, no basis for fearing an unfair trial exists.
Mpshe exercised his discretion for sure, but his reasoning lacked sufficient legal merit.
I predict our highest court will eventually say so too.
Mr President, prepare your corruption defence.
* McKaiser hosts Power Talk With Eusebius McKaiser on Power FM 98.7 weekdays 9am to noon.
** The views expressed here are not necessarily those of Independent Newspapers.