Publication: Cape Times Issued: Date: 2008-10-01 Reporter:

'You Got It Wrong, Judge'

 

Publication 

Cape Times
Date

2008-10-01

Web Link

 www.capetimes.co.za


 
The "political meddling" by Judge Chris Nicholson that cost former president Thabo Mbeki his job should never have occurred.

This is the contention of Jacob Zuma's prosecutors, who have slammed the judgment that declared Zuma's prosecution for corruption invalid - and led to Mbeki's recall - as being riddled with legal and factual errors.

The State on Tuesday attacked Judge Nicholson's judgment on 16 different grounds, arguing he had not been required in any way to make his multiple inferences against Mbeki, his cabinet and the State.

According to the National Prosecuting Authority, Zuma's counsel, Kemp J Kemp SC, had shied away from pursuing the conspiracy claims when he argued that Zuma's prosecution should be declared invalid.

Kemp confirmed to the judge that the "conspiracy claims" wrangle had "actually been laid to rest between us".

Kemp seemingly limited himself to the issue of the NPA's obligation to consult Zuma before re-charging him with corruption.

"We're not saying in this application that it (a political conspiracy) did happen.

"I just want to make that very clear, that wasn't the case we're making.

"Mr Zuma has consistently said that he is of the view that there is a political agenda behind his prosecution.

"And, M'Lord, once again, one doesn't have to go into the issue whether he's right or wrong about it," Kemp argued.

The NPA also argues that once Judge Nicholson decided to address Zuma's political conspiracy claims against Mbeki, his cabinet and current and former prosecuting bosses Mokotedi Mpshe, Vusi Pikoli and Bulelani Ngcuka in depth, he should have alerted the State.

Failing to do so, the State's legal team argues, amounted to a violation of the obligation to "hear all sides" of a dispute.

Zuma's prosecutors have also questioned Judge Nicholson's dismissal of sworn disavowals of Zuma's conspiracy claims by Mpshe, Pikoli, Ngcuka, former Justice Minister Penuell Maduna and Presidency director-general Frank Chikane.

"As none of those emphatic rejections is far-fetched, clearly untenable or palpably implausible, this court should have accepted them and rejected Zuma's contentions to the contrary."

In addition to challenging the judge's ruling that Zuma's prosecution was invalid because the State had failed to seek his representations, the NPA has taken issue with the judge's findings that:

* There should be a commission of enquiry into the allegations of widespread corruption relating to the arms deal and allegedly involving senior figures in government.
 
* Mbeki's decision to dismiss Zuma as Deputy President was unfair and unjust because Zuma had not been given a chance to defend himself in a court of law.
 
* Mbeki's decision to stand for the leadership of the ANC at the party's December 2007 conference in Polokwane was "controversial and not in accordance with the Westminster system we espouse".
The State argues that none of these findings "were issues raised for decision by the parties" and were not material to the resolution of Zuma's case.

"This court was accordingly not acting in pursuance of its duty to resolve the dispute between the parties," the NPA said.

In addition to serving its legal challenge to Judge Nicholson's ruling in the Pietermaritzburg High Court, the State also delivered a copy to the Constitutional Court, where Mbeki is seeking to have the judge's findings set aside.

Mbeki and his legal team are to meet this week to discuss his application, which he stated he had pursued out of concern that the NPA would not challenge the findings made against him.
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With acknowledgements to Cape Times.


*1       The NPA gets it wrong again.

This was about the only thing the judge got right. It's not that controversial.

Let's see what the SCA says.