Publication: The Star Issued: Date: 2008-10-03 Reporter: Ella Smook

Zuma Warns Concourt About Mbeki Ruling

 

Publication 

The Star
Date

2008-10-03

Reporter

Ella Smook

Web Link

www.thestar.co.za

 

ANC President Jacob Zuma has warned that a Constitutional Court allowance in favour of ousted president Thabo Mbeki would open the way for him to seek the scrapping of all negative references to himself from court cases he was not party to.

This would include references to his relationship with his former financial adviser, convicted fraudster Schabir Shaik.

And he has charged that such an unprecedented allowance by the court could result in chaos in the legal system, because it would violate several basic principles of law *1.

Mbeki is seeking to have Judge Chris Nicholson's September 12 remarks about him - made in a judgment about the validity of charges brought against Zuma - declared unconstitutional and set aside.

Mbeki argues that his rights were violated because he was not afforded a hearing before the court made the negative findings about him. *2

While ruling that Zuma's prosecution on charges of racketeering, money-laundering, corruption and fraud were in-valid because Zuma had not been given an opportunity to make representations, Judge Nicholson also inferred political motive and interference, driven by rivalry between Mbeki and Zuma, behind the decision to prosecute.

But in Zuma's papers, filed on Thursday by his lawyer Michael Hulley, it is pointed out that "it is an everyday occurrence that judges make adverse remarks about persons other than the parties (to cases)".

If Mbeki succeeded, a "legion" of appeals and reviews by others would follow.

An appeal may only be lodged by parties in a case on orders made by a court and neither of these were applicable to Mbeki *3 Hulley said.

If Mbeki so chose, he could sue a number of people involved in the case, including Judge Nicholson himself, for defamation. However, then Mbeki would have to prove that the statements made in the Nicholson judgment or in papers before the court were false *4.

Hulley said Mbeki had purposely chosen not to address the merits *5 of political interference by him on a number of previous occasions when such allegations were made, such as during the Ginwala commission and Zuma's Mauritian bid to intervene in the litigation against him.

If Mbeki had filed an affidavit or sought to join as a party with the aim of negating Zuma's assertions of political interference, evidence in support of Zuma's claim would have been filed and oral evidence subjected to cross-examination, Hulley said.

Mbeki may not claim the rights and benefits of a litigant by joining in at the appeal time, while at the same time escaping the risks of being a litigant from the start, he argued.

"He thus avoids the risk of all findings implicating him, the risk of having to adduce evidence and the risk of being challenged in respect of such evidence."

While disputing Mbeki's entitlement to relief, Hulley said the only relief that made any sense would be to set aside the findings made in respect of Mbeki, referring them back to court, declaring Mbeki a party to the proceedings and allowing Zuma to supplement his papers concerning the issue of political interference *6.

The NPA is also opposing Mbeki's application, because it could interfere with its appeal against the Nicholson judgment. Zuma intends to oppose the NPA application and a ruling in the Mbeki appeal could interfere in that application, Hulley argued.

"What the Applicant (Mbeki) effectively seeks before this Court is to interfere with the administration of justice and the functioning of those other Courts... there are cogent reasons for not permitting appeals made on the basis solely of reasons where these are unconnected to an appeal against the substantive order by a Court... in these circumstances this Court ought not to depart from that well-established body of law relating to what is appealable and what is not."

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With acknowledgements to Ella Smook and The Star.


*1*3    It is doubtful that Mbeki has locus standi in the Constitutional Court.


*2      While this is true in the Mbeki case, what the opportunistic Zuma does not say is that he was indeed afforded every opportunity in the Shaik case to testify as to the precise nature of his relationship with Shaik.

But he let his friend hang out to dry because he was (rightly so) too terrified of implicating himself and his benefactor Thomson-CSF.


*4*5    Something Mbeki would never do because he would be subjected to cross-examination and oral evidence.


*6      Sure, but it is trite law that this can be done on the basis of motion proceedings.

It would have to be a full-blown civil trial with discovery, oral evidence and cross-examination.

On the witness stand, inter alia:
While unlikely to happen, the prospects have me drooling all over my keyboard.

It would indeed be the most spectacular, albeit not the most serious, trial ever in the history of jurisprudence since the Nuremberg Hearings post 1945, maybe ever, anytime, anywhere.

It would cause more newspapers sold, air time broadcast and humour generated than even Tricky Dicky Nixon and His Morons.

Just the influx of foreign journalists and their subsistence, substance and travel income into the country would probably remedy the national balance of payments.

Thinking about it makes it sound like more and more like A Good Thing.

Even printing, binding and selling the Court Transcript would make a sustainable business in itself.

Although a civil trial seeking simple declaratory orders, it is easy to imagine vast numbers of judicial notices deriving from the court proceedings.

This would then result in another round of criminal proceedings and along with all the slander not covered by qualified privilege generate a further round of defamation actions.

We could truly see a more-or-less infinite jurisprudential business spring up which at the same time would create multiple secondary businesses and ongoing national light relief.

Do it.