Zuma has Little to Fear from Constitutional Court Decision on Shaik |
Publication |
Cape Argus |
Date | 2007-10-07 |
Reporter | Jeremy Gordin |
Web Link |
A colleague asked whether I could think of a legal "talking head" - or, rather, "writing hand" - who could spell out the implications for Jacob Zuma of this week's Constitutional Court judgment in the Schabir Shaik matter.
"Why?" I asked. "It seems to me that there aren't any major legal implications for Zuma. Some parts of the media have tried to drum up stories along that line. But, if you read the stories, there appears to be more wind than substance."
"Well, yes," he replied. "I guess that what I am suggesting is that there are not so much legal implications arising from the Constitutional Court judgment as there are political ones flowing from legal ones.
"Let's face it," he continued, "in any mature democracy in the world, if the highest court in the land upheld a judgment that implicated you, a major politician, in corruption, you would be history. You'd either quit - or it would be demanded that you exit.
"But that is not the case here. On the contrary, Zuma looks, at this point, as though he's headed for a victory at the ANC national conference in Polokwane in December," said my colleague.
The notion that legal implications do flow from the Shaik judgment - in which the Constitutional Court unanimously dismissed Shaik's application for leave to appeal against his criminal convictions and 15-year sentence - seems to rest on two arguments.
The first is that the judgment has at last unshackled the National Prosecuting Authority (NPA). The idea goes something like this: since the two highest courts in the land, the Supreme Court of Appeal (SCA) and now the Constitutional Court, have upheld Judge Hilary Squires's June 2005 High Court judgment, and given that Squires found Shaik guilty of corruption because, among other things, he gave Zuma money in the expectation of returned favours, the NPA can again hurl pell-mell into charging Zuma with corruption.
This could be said to be true - but only partly.
It is obviously a morale boost for the state to hear that Squires's judgment has been upheld.
But last year, when the state said it was not ready to charge Zuma, and the case was struck off the roll by Judge Herbert Msimang in the Pietermaritzburg High Court, it became clear that the state was trying to marshal a great deal more evidence against Zuma than it had at its disposal during Shaik's trial.
In other words, the outcome of the search-and-seizure appeals, flowing from the August 2005 raids on Zuma's house and the office of his attorneys past and present - set down at the SCA for November 21 - are far more important for the state's case against Zuma than last week's judgment.
This is the situation because it is apparently the evidence garnered during those raids, which took place after Shaik's trial, that the NPA considers pivotal to its case against Zuma.
I have also been told unequivocally by a senior state prosecutor that the NPA's "Zuma team" has, in any case, been soldiering on all this time, putting together its case against Zuma.
When - and whether - it will charge Zuma is not entirely in its hands. It is in the hands of the national director of public prosecutions.
Or, as seems to be the case, following President Thabo Mbeki's recent remarkable interference in the affairs of the NPA, it may be the president's call - which opens up, as the cliché has it, a whole new can of worms.
For the moment, however, the point is: the Constitutional Court judgment was not really a big deal for the state in its case against Zuma.
The second argument, purportedly shoring up the idea that the Constitutional Court's Shaik judgment has major implications for Zuma, is that the judgment has added to the legal argument in the state's armoury.
This is not so. People forget that the person found guilty in Shaik's trial was Shaik, not Zuma, and that Shaik's application to the Constitutional Court was only for leave to appeal. The court did not hear argument about the contents of Shaik's putative appeal.
The argument that the Constitutional Court heard, and judged, was that Shaik's trial had been constitutionally unfair - because Zuma and/or Thint was/were not charged alongside him, although he was found guilty of being in a conspiracy with them, and because the actions of prosecutor Billy Downer's had allegedly amounted to prosecutorial misconduct.
The court also heard that the High Court and SCA had failed to consider properly Shaik's personal and socio-economic background.
Zuma's attorney, Michael Hulley, was, so to speak, bang on the money.
He said on Wednesday: "The fact of the matter is that Mr Zuma was not the person on trial. (The Constitutional Court judgment) was a ruling on whether Mr Shaik had a reasonable prospect of success in appealing against his convictions and sentences … and I can't see how (the judgment) could increase or decrease the state's level of confidence about its prospects of success in prosecuting Mr Zuma."
In short, the newspaper headlines we have seen this week - "Now Zuma's the next target", and similar - leaned sharply, as a lawyer might say, towards the tendentious.
With acknowledgement to Jeremy Gordin and Cape Argus.