President Jacob G. Zuma and the quest for justice!

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By: Chris Greenland

– Jacob Zuma cannot be prosecuted without violation of the universally accepted test that “justice must not only be done, but also must be seen to be done”. This is because, in effect, he has already been tried without opportunity to defend himself. –

This fledgling nation, South Africa, is awash with discourse about former president Jacob G. Zuma. It is hardly surprising. The man is a legend … a legend for a multitude of reasons. In the main  these comprise a truly remarkable  story of how an ordinary man rose up to join those in a heroic challenge against the evil system of  apartheid and to be later  honoured with the Presidency of a developing democratic nation.
He later was subjected to a judicial scolding, by the Constitutional Court for having benefitted when it ruled he be held to account for a portion of R7.8million of a R216million public works security expenditure and upgrades on his now famous Nkandla property. Let me also be upfront and categorically clear I am no fan of Zuma.

Here, I am only concerned with the corruption charges involving his alleged complicity with convicted criminal Schabir Shaik. From the media reports it appears that his legal team posited their application for a permanent stay of prosecution on an incomplete basis. It is reported that their stance was that he is now unable to secure a “fair trial”, as he was “robbed” of the opportunity to defend himself when Shaik was tried.

What SHOULD have been included in the application was that there is no Judge, or person, in South Africa today who can survive the jurisprudential test for bias. The set law is that a Judge cannot preside over a trial if a reasonable person, knowing all the facts, MIGHT assume bias on his or her part. Here bias can be defined as being doubtful that the Constitutional presumption of innocence is fully in place. Not one of us can survive that test. We cannot … as we were all treated to the trial of his alleged accomplice Schabir Shaik and we all know that the Superior Courts fully confirmed that he bribed Zuma. Shaik did not bribe a tree…or Table Mountain … or his golf coach. He bribed Zuma. We all KNOW this from the Shaik concluded ruling and findings.

In these circumstances, a reasonable person WILL … NOT MIGHT … assume bias on the part of. So, with respect, if his legal team did not include this in their application I must, with respect, question their strategy. As Zuma’s Counsel these are the questions I would have put to the Judges: – A. Who did Shaik bribe? B. Has this been confirmed as proved beyond doubt by the Superior Courts? C. Do you accept and respect the Court’s decision? D. Can you now try Zuma in view of the truth you are now infused with??

Having failed, under the President Thabo Mbeki and then Director of Public Prosecutions, Bulelani Ngcuka to bring Zuma to Court on charges of unlawful criminal conduct, the State is now enthusiastically pursuing our erstwhile struggle hero on numerous charges that have to do with a corrupt mode and culture. On this matter we are now all experts. As said, the nation is awash with a plethora of opinions, ranging from rabid to nonsensical to problematical to possibly acceptable.

I should add that I have a serious reservation about the Court’s ruling that the fact that he went on to become President was proof that he had not been prejudiced by being “robbed” of the opportunity to prove his innocence. However, that is besides the issue I raise here.

So let us put the matter to bed. 
We do so by recognizing and giving effect to a series of fundamental imperatives that are not negotiable if we are committed to justice.

1. “Justice must not only be done but also seen to be done”. What this means is that a person’s guilt can only accrue if it is proved before an independent Court by way of credible reliable evidence.

2. So this gives rise to the Constructional presumption of innocence that binds all of us. Until Jacob Zuma is proved to be guilty of something in Court, we are constrained to presume that he is innocent of crime whatever we might conclude about political shenanigans.

3. “All are equal under the law”. This is a fundamental Constitutional imperative. So we are right in insisting that Jacob Zuma be put on trial if there exists evidence of criminal conduct that, if unexplained, proves guilt. To that extent the State must be fully supported in its efforts to bring Zuma to trial.

Zuma’s case, in simple terms, is that it is no longer possible for him to be afforded a fair trial. He claims to be an innocent victim of State sponsored shenanigans. In my respectful view he is right as regards the charges involving Shabir Shaik.

Under the then President Thabo Mbeki, the Director of Public Prosecutions, Bulelani Ngcuka made the extraordinary decision to only prosecute Shaik, even though the evidence was that Shaik had bribed Zuma. Sometimes the State has little option but to confer witness indemnity to a guilty party in order to get that person to give evidence against an accomplice. That was not the case here. Ngcuka never had any intention to call Zuma against his accomplice. It appears to have been a case of simply favouring a “struggle comrade” while holding the vulnerable Indian (Shaik) to full account. This was an express breach of the Constitutional imperative that all are equal under the law … and, in my view; it has now come to bite the State.

My reason is that Shabir Shaik’s guilt for extensive bribery was proved beyond all doubt in accordance with our criminal justice system, and the Superior Courts have confirmed that.
In that system Shaik was proved to have bribed Jacob Zuma. So it was proved that Shaik was the briber and Zuma was the person who was bribed by Shaik. In fact and law both are guilty. What this means is that currently every single reasonably minded, informed South African knows that it has been proved beyond doubt that Zuma is guilty of having received bribes from Shaik.

Given the imperative of well settled law, it is now impossible for any such South African to preside over a trial of Zuma on the Shaik charges of corruption. The reason is that the Constitutional presumption of innocence is now, shall we say, kaput … finish and klaar. The law is that no one can preside over a trial of a person if a right thinking person, knowing all the facts, MIGHT conclude that the person no longer is fully imbued with the presumption of innocence. It does not matter that the presiding Judge is actually not biased. What disqualifies him or her is that a reasonably minded person, knowing all the facts, MIGHT perceive him/her as biased against Zuma. I cannot see how any of us can now survive that test. From the court findings in the Shaik case we all KNOW who Shabir Shaik bribed. It was Zuma. The Courts have confirmed this in strong terms.

Our Judges are therefore, all disqualified in terms of this test …for the stated reason that a reasonable man MIGHT perceive the Judge as a person who already knows or suspects that the accused is not innocent. With respect, any Judge who seeks to get around this resolutive test for what is known as the “test for perceived bias” can only do so in terms of intellectual gymnastics of a capricious nature. For those interested to read all about this, very instructive is the case of PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA AND OTHERS v SOUTH AFRICAN RUGBY FOOTBALL UNION AND OTHERS 2000 (1) SA 1 (CC).

I have argued, there is still so much time, resources and energy being devoted to the issue of whether or not former president Jacob G. Zuma should have stood trial; and whether or not he still should stand trial.

His Advocate conceded in Court that the decision to drop the prosecution was irrational. Below is a letter distributed to the media houses in 2010 which unfortunately never was published? It explains simply and clearly why Jacob Zuma cannot be prosecuted, whatever you and I might think. “The Editor, Now that Selebi has been prosecuted and sentenced, the hype regarding whether or not Jacob Zuma has been favoured is being resurrected. It needs to be put to bed once and for all.

The whole issue devolves around a simple but resolutive matter of law at its most fundamental and sacred level. Jacob Zuma cannot be prosecuted without violation of the universally accepted test that “justice must not only be done, but also must be seen to be done”. This is because, in effect, he has already been tried without opportunity to defend himself.

There is now no South African who is eligible to serve on the trial court as either a Judge or, lets say, a juror if SA had a jury system. The reason is that none of us can survive the test for bias, as recognized in legal approach. This is because we each have to admit that we are completely aware that both the High Court and the Supreme Court of Appeal have certified that it has been proved beyond reasonable doubt that Shaik bribed him. We have all internalized this information. Given that we also have to admit acceptance and respect for our Superior Courts, inherent bias against Zuma has been organically induced in the individual and collective psyche. It is quite impossible to imagine/perceive a more powerful inherent motive to convict.

The presumption of innocence, sacred to the administration of justice, is an unavoidable casualty. To claim that we presume him to be innocent is somewhat unbelievable. In law, the test is not whether or not the trial Judge presumes innocence – it is whether a reasonable observer, knowing all the facts, might assume the Judge does not. It is now inevitable that most reasonable people will/might have perfectly reasonable doubts and suspicions about any SA Judge trying Zuma. In law bias is present and the Judge is disqualified.

Furthermore if he is tried and convicted, the result comes as confirmation of what has gone before and is already known and accepted, i.e., fulfilment of an expectation. If he is acquitted the administration of justice is unavoidably discredited in being perceived for having bowed to political pressure or having wrongly convicted Shaik or both. Thus the test for justice being “seen to be done” again must fail.

The above represents the regrettable effect of the decision that was made by Bulelani Ngcuka, Correctly observed as bizarre by Judge Nicholson, to prosecute only the briber. You do not bribe a tree, a bridge or Table Mountain. You bribe a person. So when you are tried for bribery such person is also on trial whether present in court or not. The above cannot be denied, ignored or wished away. It is unarguable that the requirement that “justice be done and seen to be done”, in this instance, is simply unachievable.

The above is a simple explanation of the jurisprudence of the matter. It is no longer about Zuma’s guilt or innocence; it is about justice. Now why was this not published … if only to balance the debate? Personally, I am passionate about media freedom. However, I also must ask readers to share this creed

In this regard in conclusion permit me to cite Malcolm X who said it long ago, “I’m for truth, no matter who tells it. I’m for justice, no matter who it’s for or against.”

What justice demands here is that the State should admit that it was in error in not having prosecuted Jacob Zuma together with Shabir Shaik and that therefore the presumption of Zuma’s innocence is perniciously compromised.
It should withdraw those charges and dutifully proceed as regards the rest of the charges stressing that no one is above the law.

Chris N. Greenland
Former Judge of the High Court of Zimbabwe and acting Judge of South Africa.” His expertise include: Judicial, legal, regulatory, general management and administrative.