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SCA opens the door for new Zuma charges

Published Jan 12, 2009


By Karyn Maughan and Sapa

The judgment that quashed African National Congress President Jacob Zuma's prosecution - and led to ex-president Thabo Mbeki's ousting from office - is in tatters.

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Five Supreme Court of Appeal judges on Monday morning unanimously overturned Judge Chris Nicholson's ruling that Zuma's prosecution was invalid because the National Prosecuting Authority had failed to invite the ANC leader to make representations about the criminal allegations against him before charging him.

Nicholson's judgment was the basis on which Thabo Mbeki was fired as president.

And, speaking for himself and his colleagues, Appeal Court Deputy Judge President Louis Harms has hit Zuma with a punishing costs order for his "cut and paste" conspiracy allegations against the State.

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Judge Harms chastised Judge Nicholson for his "political meddling" inferences against Mbeki and the State, describing them as "gratuitous findings made about persons not called to defend themselves".

Judge Harms said many of these findings were based on Judge Nicholson's "own political conspiracy" beliefs - and were not supported by evidence or even accusations made by Zuma himself.

"He (Judge Nicholson) overstepped the mark... He changed the rules of the game, he took his eyes off the ball," Judge Harms said, adding that Judge Nicholson's failure to confine his judgment to the legal dispute before him set a "dangerous precedent".

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Nicholson finding of political meddling in the Zuma graft case were "erronous", "unwarranted" and "incomprehensible", Harms said.

"Political meddling was not an issue that had to be determined. Nevertheless a substantial part of his judgment dealt with this question, Harms said.

He said Nicholson's finding that he could not exclude the possibility of political meddling in the decision to re-charge Zuma was "incomprehensible", that he erred in his judgment and that his findings were "unwarranted".

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He said Nicholson had overstepped the limits of his duty as a judge.

His findings ultimately led to the axing of president Thabo Mbeki.

"The findings involving Dr Penuell Maduna, Mr Mbeki and all the other members of cabinet were not based on any evidence or allegations. They were instead part of the judge's own conspiracy theory and not one advanced by Mr Zuma," said Harms.

Harms started delivering his judgment at 10am on Monday in the appeal lodged by the National Director of Public Prosecutions against the Nicholson ruling on September 12 last year.

The Bloemfontein court ruled on mainly two aspects in the appeal.

The first is whether Zuma was entitled to make representations before the NDPP decided to re-charge him with corruption and fraud in December 2007, 10 days after Zuma beat Mbeki in the ANC leadership race.

The second is whether Nicholson was correct in implying in his September 2008 judgment there was political meddling by Mbeki in the decision to charge Zuma.

Judge Harms said Judge Nicholson's stated support for a Commission of Inquiry into the arms deal and criticism of Mbeki's decisions to fire Zuma and stand for ANC president in 2007 clearly demonstrated how he had gone beyond what he was required to decide.

The judge stressed throughout the appeal ruling that Judge Nicholson was never required to rule on the political conspiracy suspicions raised by Zuma because they were "not relevant" to the so-called "representations dispute" between Zuma and the NPA.

"You are either entitled to a hearing or you are not," Judge Harms said.

Judge Harms dismissed Judge Nicholson's "gratuitous" findings that Mbeki and his former justice ministers had meddled in the State's decisions to charge Zuma, pointing out that there was no evidence to support these conclusions.

But, while finding that Mbeki and his ministers "had ample reason to be upset" about the findings made against them, Judge Harms said the former president did not have enough of an interest in the state's appeal to justify his own direct attempt to intervene in it.

The judge pulled apart each of the legal arguments used by Zuma's lawyers to justify their claim that the NPA was constitutionally obliged to invite Zuma;s representations on the criminal allegations against him.

Addressing arguments by Zuma's advocate Kemp J Kemp SC that Zuma had a "legitimate expectation" that he would be asked for his representations by the NPA, Judge Harms said he found this reasoning "difficult to grasp".

Zuma and his legal team were absent from Monday morning's ruling, ANC Women's League head Angie Motshekga and ANC MEC for safety and security in the Free State Magashule were among the dignitaries who attended the ruling.

Despite ANC spokesperson Carl Niehaus earlier stating that no demonstrations would be held after the completion of the Zuma ruling, the square opposite the court was this morning adorned with ANC banners and placards in apparent preparation for a gathering.

Outside the court, eight Zuma supporters sang and danced from just after 7am on Monday morning.

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