Open+letter+Chaskalson+and+Bizos,+Paul+Ngobeni

=Open letter to Judge Arthur Chaskalson and Advocate George Bizos=


 * By Paul Ngobeni - Deputy Registrar Legal Services, University of Cape Town, 8 January 2008**

Your recently issued press statement about the pending Zuma trial has put me in the unenviable position of having to publicly criticise men I regarded as my heroes. I am writing not to question your integrity but your wisdom and to refute the erroneous legal statements you have made.

You have correctly stated African National Congress (ANC) president Jacob Zuma's innocence or guilt should be decided by the courts and not through rhetorical statements from his detractors or supporters. You then went on to express your concerns about "the tone of the debate" around the matter and claimed that you did not want to say anything about whether Zuma should have been charged, or the substance or lack of substance of the charges against him because "those are matters beyond our knowledge."

I respectfully disagree -these are matters that should be within your knowledge as trained legal scholars. I also part company with your statement that Zuma's supporters have implied that our "judiciary as a whole lacks the independence and integrity to ensure that Mr Zuma will receive a fair trial". In fact, as I will explain here the argument put forth by Zuma's supporters is much more sophisticated than that - it is firmly rooted in our own constitution and finds support in the rulings of courts from around the civilized world.

Contrary to your statements, there is nothing "harmful to the judicial process, South Africa's constitutional democracy and the country's reputation" in our citizens' calling for the courts to live up to their responsibility and to hold the National Prosecuting Authority accountable.

To make a tedious tale tolerably terse, Zuma is entitled to argue for a dismissal of his case under the doctrine of abuse of process. The general rule is that the unfair or oppressive treatment of an accused by the prosecuting authorities disentitles the state to carry on with the prosecution of the charge. The prosecution is set aside, not on the merits, but because it is tainted to such a degree that to allow it to proceed would tarnish the integrity of the court.

The court can act in a wide range of circumstances including (a) where by reason of some circumstance the defendant would be denied a fair trial and (b) where because of some circumstance it would be unfair to try the defendant. The first situation is more frequently encountered as for example where due to delay or the absence of important evidence the defence is prejudiced and the defendant would thereby be denied a fair trial.

In the second category it is well recognized that where there has been such grave misconduct on the part of the police, executive, or prosecution which undermines or threatens the rule of law, the court may and sometimes should intervene even where a fair trial can take place. The rationale behind this approach is that the court should act so as to show its disapproval and that it will neither tolerate such conduct nor appear to endorse it. The doctrine acknowledges that courts must have the respect and support of the community in order that the administration of criminal justice may properly fulfil its function.

Zuma's supporters are calling for the courts to interfere with the prosecution in the present circumstances precisely because they know that our judiciary accepts a responsibility for the maintenance of the rule of law that embraces a willingness to oversee executive action. It is perfectly all right to call upon our courts to refuse to countenance prosecution behaviour that threatens either basic human rights or the rule of law.

There is nothing rhetorical or shameful about Zuma's supporters calling upon the judiciary to tell the NPA enough already! Why should a citizen who seeks a dismissal of a case before trial be hamstrung by calls for those who claim he should wait for a trial on the merits? Justice delayed is justice denied.

The NPA's dilatory tactics provide a solid legal basis for dismissing the Zuma case even before trial. Courts from around the world including, Canadian, USA, the International Criminal Tribunal of Rwanda, International Criminal Tribunal for the Former Yugoslavia, the European Court of Human Rights have generated a large amount of jurisprudence on the right of an accused to be tried without undue delay and in a fair trial. These principles guaranteeing fair pre-trial procedures rights and a criminal defendant's right to a speedy trial have firm and sturdy roots in our own constitution.

Where a breach of these rights occurs, the court typically has the inherent power to dismiss an indictment and safeguard the accused from oppression and to prevent prosecution when it would be unjust to permit the prosecution to proceed. There is nobility in our citizens' call for these principles to be observed in the Zuma case.

The NPA's handling of the Zuma prosecution has been the polar opposite of due diligence and constitutes gross abuse of our judicial system in a manner that has irreparably destroyed Zuma's chance of getting a fair trial. There are even media reports that Chief Justice Langa has sternly reprimanded the NPA for tardiness and for cavalierly flouting the rules of the constitutional court. This is an ominous sign for a prosecution team that has procrastinated for a better part of seven years during the investigation of Zuma case, dragged its feet and lollygagged for months following Judge Msimang's throwing their case out of court.

In fact it took another fifteen months after Judge Msimang's ruling for the NPA to complete a "draft indictment" for instituting yet another prosecution against Zuma.

In my opinion Zuma has already established his entitlement to a dismissal of his case with prejudice. After all, Zuma's first corruption case was thrown out of court because the National Prosecuting Authority piled delay upon delay and could not present the court with a final indictment, despite having investigated Zuma for more than seven years. Judge Msimang's well-reasoned decision striking the case from the roll provides a firm basis for dismissing Zuma's case. The NPA decided for its own tactical reasons not to indict Zuma with Shaik in 2003 although it chose to have him tarred and feathered in the press.

I have researched case law of over 60 countries and can confidently state that Zuma has the unenviable distinction of being the only citizen in the world who was officially and publicly accused by a prosecutor of criminal wrongdoing amidst claims by the same prosecutor that he did not have a winnable case. This, and not statements by Zuma's supporters, should make us the laughing stock of the entire world.

It is well known that in mature democracies such as the US, the investigatory stage of a case is always shrouded in secrecy. In this way, citizens including politicians and public officials often investigated even through grand juries are spared the type of outrageous violations visited upon Zuma. Strong policies exist against publicizing investigations. How come you gentlemen never criticised the NPA for its outrageous conduct or called upon South Africa to design effective mechanisms to prevent publication of unwarranted charges against an innocent target of an investigation who the prosecutor may ultimately decide not to indict?

An indictment that comes more than seven years since the commencement of an investigation and more than four years after the NPA announced the existence of a "prima facie case" against Zuma is presumptively prejudicial. Zuma has every right to cry foul.

Another matter that has been ignored by all legal scholars is that the Public Protector's finding in Zuma's favour. You may recall that Zuma lodged a complaint with the public protector on 30 October 2003 as he was justifiably incensed by the NPA's statements. The Public Protector subsequently issued a damning report in which it found that Ngcuka's statements infringed on Zuma's constitutional right to dignity and caused him to be improperly prejudiced.

During its investigations, the public protector experienced stone-wall tactics by the NPA and other difficulties ranging from prevarications, evasiveness and outright refusal to cooperate with the public protector. Why have our courts acted as if the adverse findings by the public protector against the NPA do not exist? Are the courts not giving the appearance of condoning prosecutorial misconduct and why should an ordinary citizen continue to believe in the efficacy of the public protector's office and even the courts if these institutions can ignore each other's rulings or findings?

I respectfully suggest to you that the looming crisis of confidence in our judiciary is fully attributable to the NPA and even the courts themselves. The NPA director was never censored or disciplined by anyone and when Zuma was fired his job was given to the prosecutor's wife, thus putting more money in the prosecutor's household! Gentlemen, Zuma may not be an Oxford or Harvard man but I believe he and his supporters have a very sophisticated understanding of our democracy and our constitution.

I completely disagree with your claims that matters pertaining to whether Zuma should have been charged are not within your knowledge. We were not born yesterday. In a not so veiled effort to influence the outcome of the hotly contested ANC elections, the NPA kept issuing media statements about Zuma's pending charges while the ANC conference was underway in Limpopo. It went so far as to publicize its "draft indictment" of Zuma and followed it up with the present indictment.

What other democracy countenances that kind of conduct and why have you gentlemen not said a word about the NPA's shenanigans? The NPA's arrogance is demonstrated by the fact that it ignored even hints from the highest courts and established legal principles in a gadarene rush to bring charges against Zuma. For instance Judge Howie, in his ruling on the SABC v Downer SC NO & others [2006] case, made certain observations which should have made the NPA think long and hard about its tactics.

He questioned the NPA's decision not to charge Zuma together with Shaik and stated "Considering next the problem of the pending Zuma trial, it is not apparent why the prosecuting authorities did not charge both accused in one case. Their present predicament could well be of their own making." Shaik's health problems may render him unavailable to Zuma as a potential key witness and thus derail Zuma's right to a fair trial. You all know that the loss of witnesses, evidence and the general dimming of memories that is attendant to the lengthy delay present in a case may substantially impair an accused's ability to defend himself and is an appropriate basis for a dismissal of the case.

In short, through its own self-imposed short-cuts, the NPA could potentially deprive Zuma of a fair trial. Judge Howie then went on to say that "Obviously it will not be anyone's intention in the pending criminal appeal to consider or pronounce upon Zuma's alleged guilt but again it is in the interests of justice pertinent to the pending trial to minimise, if not eradicate, the risk that popular perception will regard the crucial question in the Zuma case as having already been made." Why did the NPA not take this admonition to heart and avoid unnecessary publicity and media leaks in Zuma's case?

To make matters worse, the Supreme Court of Appeal itself later relied on media statements and claimed that Judge Squires ruled that a "generally corrupt relationship" existed between Zuma and Shaik even though Judge Squires' judgment contained no such finding. Given that even the highest courts have now compounded the problem by taking judicial notice of non-existent facts, why should Zuma and his supporters not believe that his goose is already cooked?

Another issue that you have both assiduously avoided is the apparent vindictive prosecution in Zuma's case where the NPA has now added thirteen additional charges. A prosecutor violates due process when he brings additional or more severe charges to punish the defendant for exercising a constitutional or statutory right. For instance, a defendant has certain rights to file complaints against a prosecutor with the public protector's office. He may also file motions to strike a case off the roll or dismiss the prosecution's case and may even exercised his statutory right to appeal certain adverse court rulings.

A prosecutor may be embarrassed by any of the complaints or successful defence motions but he is not allowed to "up the ante" by filing charges he would otherwise not have filed or increasing the severity of the charges following a defendant's successful motion or appeal. In Zuma's case, the NPA would like us to believe that its case, like fine wine, keeps getting better with time. It is the appearance of vindictiveness, rather than vindictiveness in fact, which controls.

If defendants like Zuma facing NPA's requests for postponement are fearful that new additional charges may be filed when the government reindicts, they would be deterred from exercising their rights simply to avoid the Zuma scenario. It appears the NPA responded to striking of its case from the roll by reindicting Zuma on essentially the same charges and adding more than a dozen additional counts.

These circumstances--"upping the ante" as a result of Zuma's successful opposition--raise a presumption of vindictiveness. Zuma has additional argument that the NPA's statements which seem to have been orchestrated to coincide with the ANC conference in Limpopo confirm the appearance of vindictiveness created by the sequence of events: the government charged Zuma with additional and more severe charges in retaliation for his public complaints about the fairness of the trial or use of state organs to settle political differences.

A prosecution motivated by a desire to discourage expression protected by the constitution is barred and must be enjoined or dismissed- that is the law. By the sheer number of the additional charges and the prosecution's legendary tardiness it seems that a Zuma trial will drag for more than three years at least and will certainly impact his ability to assume the presidency of the country at the next election.

In other words, the government's deeds and words create the perception that it not only added the new charges to make Zuma look like a common criminal and thus dissipate the criticism heaped on the NPA and the government for abuse of state organs but that it also wants to tie Zuma up in court and deny him the opportunity to assume the presidency. When legitimate court delays are mixed with NPA's lackadaisical prosecution of the case, the line between normal systemic delays and political manipulation can be fatally blurred.

A court need not find that the prosecutor acted in bad faith or that he maliciously sought the additional indictment before ordering a dismissal. In conclusion, may I suggest that there is not yet a crisis of confidence in our judiciary - but there are signs. There is also a rational solution to the entire saga- that is a dismissal of the entire Zuma case with prejudice.

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