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Mbeki Considers Court Action Over Zuma Ruling Legalbrief | your legal news hub Friday 01 October 2021 Mbeki considers court action over Zuma ruling President Thabo Mbeki and former NPA head Bulelani Ngcuka are considering a legal response to the judgment in which the charges against ANC president Jacob Zuma have been declared invalid on a technicality. According to a Cape Times report, Mbeki said yesterday he had asked state law advisers to consider Pietermaritzburg High Court Judge Chris Nicholson's finding that there was some merit in Zuma's submission that there was a political conspiracy against him and the decision to prosecute him was politically driven. Ngcuka was 'taking legal advice' on the finding, his office said. Zuma's legal team has said it was 'bizarre' that Ngcuka and the President may take legal action. Zuma's attorney, Michael Hulley is quoted as saying the prospect of Mbeki or Ngcuka seeking to challenge Nicholson's ruling was 'strange', considering that neither had applied to intervene when Zuma made his much-publicised conspiracy allegations against them. 'It doesn't take me by surprise that the NPA would consider its legal options after the ruling ...but it's bizarre that anyone outside the parties directly involved in the case would do so now that there is a judgment they don't like. It seems to me to be completely unprecedented.' Former Justice Minister Penuell Maduna, who Nicholson inferred improperly interfered in the NPA's investigation and the 2003 decision not to charge Zuma with his former financial adviser Schabir Shaik, said he would not seek to enter the fray over the ruling. The NPA has yet to decide on its response to the ruling. Full Cape Times report (subscription needed) Zuma yesterday called on SA to protect its democratic institutions and prevent their abuse to further political agendas. A report in The Times quotes Zuma as saying: 'Our faith in the judiciary has no doubt been given a further boost by the ruling. The judge has re-emphasised the independence of the judiciary and the critical role it plays in interpreting our constitution to protect the rights of individuals against the state and its apparatus. But, most importantly, the honourable judge opened the eyes of the nation to the critical task to transform and protect our democratic institutions and prevent (their) abuse to further political agendas.' Zuma also said the country needed a media 'that is free of political control and influence'. He said: 'A subservient media is dangerous to our democracy as it allows those in power to abuse the rights of others at will, knowing that they enjoy the full backing of the media.' Full report in The Times The Nicholson judgment should have no bearing on her inquiry, says Frene Ginwala, who is heading the probe into suspended NPA head Vusi Pikoli's fitness to hold office. She told Business Day yesterday 'the judgment should not have dealt with any aspect of my inquiry'. Although noting that Ginwala is not bound to apply the ordinary rules of evidence or precedent because hers is not a judicial inquiry, the report points out the cases overlap because both Zuma and Pikoli argued that the executive had unlawfully meddled in the independence of the NPA. President Thabo Mbeki said the reason for Pikoli's suspension was a breakdown in his relationship with Justice Minister Brigitte Mabandla. Pikoli had from the outset of the inquiry argued that the sole reason for his suspension was to stop the intended prosecution of Police Commissioner Jackie Selebi. Zuma argued before Nicholson that the decision by the NPA, first not to prosecute and then later, to prosecute, was motivated by political conspiracy. Consequently, Nicholson's judgment made findings as to what the appropriate relationship between the executive and the NPA was. Nicholson also made factual findings as to whether there was 'political meddling' by the executive in prosecutorial decision making. Both of these issues were before Ginwala's inquiry. Full Business Day report A tactical error by the NPA dented the organisation's credibility. That's the thrust of an article by Professor Robin Palmer, director of the Institute for Professional Legal Training University of KwaZulu-Natal, in the Cape Argus. Palmer makes the point that the only issue that should have been before the court is whether Zuma had been legally entitled to be invited to make representations to the NPA when the decision was taken in December 2007 to prosecute him again. For the court to make a decision on this issue would have required two fairly straightforward steps: first, to make a finding on what the legal requirements for the 'representation' obligation contained in section 179(5)(d) of the Constitution are and second, whether, on the evidence before it, the NPA had complied with these requirements. This second step is purely a factual inquiry, being whether on the accepted evidence the NPA gave Zuma the opportunity to make representations or not. To make this second finding, there should have been no need for an exhaustive investigation into the reasons and motives for complying or failing to comply with section 179(5)(d). The court held, however, that the NPA had made these motives an issue for the court to decide by bringing a 'striking-out' application - ie: asking the court to order the removal of certain paragraphs from Zuma's affidavits. The portions the NPA wanted removed from Zuma's affidavits were various allegations made by Zuma about political interference in the decision to prosecute, which the NPA wanted struck from the court record as being 'scandalous, vexatious and irrelevant'. In order to decide whether the striking-out was justified in law, the judge was obliged to consider these allegations in great detail to decide whether they were indeed 'scandalous, vexatious and irrelevant'. Full Cape Argus report Opposition groups have been quick to take up Nicholson's suggestion there should be a commission of inquiry into the arms deal, submitting a motion to Parliament yesterday that calls for a debate on the establishment of such a commission. The Citizen quotes DA parliamentary leader Sandra Botha, who urged the House to call on 'President Thabo Mbeki to appoint an independent commission of inquiry, headed by a retired judge, to investigate whether any abuse of power, and/or corruption, and/or any other irregularities occurred in the execution of the arms deal'. The Independent Democrats (ID) also called for the establishment of a commission of inquiry. According to a report in Die Burger, ID leader Patricia de Lille said a commission was the only way to stop the 'selective prosecution' of politicians. 'If they believe Zuma was prosecuted selectively, they must support our motion so that all the implicated parties can be prosecuted.' But Unisa political analyst Dirk Kotze said support from the ANC was unlikely. Kotze described the arms deal as the ANC's Pandora's Box. However, the Cape Times reports that according to sources in the tripartite alliance, some members of the ANC, the SACP and Cosatu think a mechanism must be found to settle once and for all questions around the arms deal. Full Cape Times report (subscription needed) Full report in Die Burger Full report in The Citizen And UDM leader Bantu Holomisa has written to the Speaker of the National Assembly, Baleka Mbete, to ask what the rules are for unseating a President. A Mail & Guardian Online report notes that he told her in an open letter that he had no intention of voting to unseat the President on the basis of inferences by a judge and without that President receiving a chance to answer the accusations. He said it seemed to him that if Parliament intends acting against the President, it might need to appoint a body to determine what the judge's inferences of political interference in prosecutorial decisions mean. 'Can we plunge the whole country into a new crisis by removing the President while there is still no clarity about the guilt or innocence of Mr Zuma, who is being touted as the next President,' asked Holomisa. Full Mail & Guardian Online report The ANC's Umkhonto weSizwe Military Veterans' Association has warned acting NPA head Mokotedi Mpshe of economic and political turmoil if Zuma's corruption trial continues. A Mail & Guardian Online report notes that MK vets general secretary Ayanda Dlodlo and a delegation from the association paid Mpshe a 'courtesy call' last week to tell him the association will be making formal representations to him about the corruption, racketeering and money-laundering charges Zuma faces. 'We believe that Zuma was treated unfairly and that there is no way in which he can have a free and fair trial,' she said. 'The NPA must take a decision to rescind'. The delegation outlined 'our fears of the political, social and economic implications of the Zuma trial', arguing that it would be irresponsible for the NPA to allow it to continue. Full Mail & Guardian Online report .
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