[DEBATE] : When courts parrot common knowledge, Karima Brown, B Day
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Tue Nov 14 05:19:12 GMT 2006
Business Day, Johannesburg, 14 November 2006
When courts fall prey to lie of common knowledge
IMAGINE you are a judge of the Supreme Court of Appeal. You have to decide
on a complex criminal case involving large sums of money tied up in
accounting and business practices that the layman, or yourself for that
matter, will not easily understand.
Complicating the case further is the involvement of the countrys former
deputy president, and the very real possibility that he may still be
criminally charged, partly as a result of the decision you are about to
So before deciding on the merits of the appeal you ask yourself: what are
the established facts? Well, you know that there was a generally corrupt
relationship between the appellant and the said politician. You know this
because, well, everyone knows it. Its in every newspaper, its on TV, on
radio, on the lips of ordinary people in the street. Hell, the man was fired
from the Presidency because of this generally corrupt relationship. Simple
Except that the only acceptable source for such a finding for a Supreme
Court judge is the original trial court. Not the media, not public opinion,
and not the presidents actions. The reason the standards for establishing
any fact even an incidental one are so high for courts, is to guarantee
our common right to a fair trial. We must be certain that the court before
which we are due to stand has no preconceived ideas about the case its
hearing. That it will disregard even things that are so generally accepted
that they have passed into common understanding.
Two Mondays ago, a full bench of our Supreme Court proved incapable of
fulfilling that basic requirement. That, in essence, is the meaning of The
Weekenders story, I never said Jacob Zuma was corrupt Squires (November
Dont believe Billy Downer, the lead prosecutor who put Schabir Shaik away,
when he says its only a storm in a teacup. Dont believe legal and
political analysts who say the Supreme Courts mistake was a technicality
or semantics. We are a constitutional state governed by strict rules. One
hopes that senior prosecutors, Supreme Court judges and political pundits
understand what this means.
The evidence is not encouraging.
Judge Hilary Squires said the relationship between Shaik and Zuma was
mutually symbiotic. He then went on to find Shaik guilty of corruption. As
an ordinary person, you might conclude that there is an inconsequential
difference between that statement and the prosecutions description of the
relationship as being generally corrupt. The difference in law, though, is
a gaping chasm. Squires original words leave undecided the possibility of
Zumas own corrupt intent. Generally corrupt relationship does not. It
binds both men with shared evil intent. It is the sort of statement a judge
should never make. It is the sort of statement the Supreme Court should
never parrot so mindlessly.
Thats as far as the legal ramifications of the Supreme Courts mistake go.
It will not change Shaiks fate. He could try to take their decision on
review, and argue the court did not fully apply its mind. But that would be
a hard sell, since the facts of his case remain unchanged. The political
ramifications are another issue altogether.
Lets not forget the legitimacy of the South African judiciary does not
enjoy wide acceptance. Even the African National Congress has had occasion
to rail against SAs untransformed bench. Government is constantly having to
defend judges and their findings against public political assaults. By being
so sloppy, so callous and unprofessional, the Supreme Court has shot the
entire judiciary in the foot. Senior lawyers, law professors and judges who
attempt to pooh-pooh the controversy and pretend that it means nothing, are
not doing the institution any favours.
Arrogant, smug schoolboy solidarity and other knee-jerk responses will only
increase suspicions that the courts in the Zuma matter have been at best
incompetent and at worst, malicious.
How do we deal with ordinary peoples perceptions that Zuma is being legally
pursued as part of a political plot? After all, the highest criminal court
can disregard evidence and make findings that were never part of the
original trial. How impartial are they?
We should also never forget that SAs former chief prosecutor demolished the
separation between executive and judiciary when he appropriated for himself
the right to decide that there was a prima facie case of corruption
against Zuma, a finding that can only be made by a court of law.
Legally, the cumulative effect of all these bungles is that the
Constitutional Court will surely be asked to decide whether Zuma can ever be
prosecuted fairly. The political effect is that these outrages may no longer
look like bungles at all, but part of a concerted attempt to get rid of
Zuma, whatever the cost to our constitutional state.
* Brown is political editor.
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