[DEBATE] : Judge Harms tears Zuma judgment to shreds: Corruption trial may proceed

[Peter van Heusden]

>From "The Times":
http://blogs.thetimes.co.za/hartley/2009/01/12/judge-harms-tears-zuma-judgment-to-shreds-corruption-trial-may-proceed/

 12 January 2009, 11:07 GMT + 2

Five judges of the High Court in Bloemfontein have opened the door for Jacob Zuma to be prosecuted once more by
overturning Judge Chris Nicholson’s judgement that charges had not been properly brought against Zuma.
Harms said: “The appeal is upheld with costs.”
The appeal judgement opens the door for the National Prosecuting Authority to charge Zuma once more with hundreds of
counts of fraud and corruption, although Zuma is expected to appeal the ruling.
Judge Louis Harms introduced the judgement with the understatement of the year: “The litigation … has a long and
troubled history.”
He later said: “It would be naive to pretend that we are oblivious to the fact that Judge Nicholson’s judgement has far
reaching political consequences.”
It was downhill from there from Zuma.
Harms was contemptous of Nicholson, making several scathing remarks.
He was harsh on Nicholson’s decision to rule on facts not properly canvassed by the court, saying: “Judgement by ambush
is not permitted.”
Nicholson had made findings based on “unconfirmed newspaper speculation”.
Harms found that, contrary to Nicholson’s judgement, the “the motive behind the prosecution is irrelevant”.
Harms was also hard on Nicholson’s finding that former President Thabo Mbeki and his officials had meddled with the case.
By straying from the core matters in the case to address political interference, Nicholson “red-carded not only players,
but also spectators”.
“A failure to confine the judgement to the issues that were before the court”. “By making gratuitous findings”.
“transgressing the proper boundaries” between executive and judiciary.
He said judges were “not entitled to express their political preferences.”
“The court below overstepped the limits of its responsibilities.”
Nicholson was also wrong to find that an arms deal inquiry should be appointed. “The point is that those personal
sentiments … were unwarranted.”
He said of Nicholson’s critical comments on Mbeki’s dismissal of Zuma and his attempt to contest ANC presidency. “These
matters are not matters of law. They are purely political questions. Whether or not one agrees with the judges
sentiments is of no consequence.”
Nicholson had also made “unfounded finding against Mr Mpshe”, the new national director of prosecutions.
On Nicholson’s finding that the decision to reinstate charges against Zuma had not followed proper procedure, Harms found:
“The Bill of Rights deals in great detail with the rights of accused persons and is silent about the right to make
representations.”
Referring to Nicholson’s finding that Mbeki had interfered inappropriately with the prosecution, Harms said: “Mr Mbeki
and other members of government had reason to be upset”.

See also:
Judge Chris Nicholson’s Zuma judgment: The full text:
http://blogs.thetimes.co.za/hartley/2008/09/13/zuma-judgement-the-full-text/

NPA heads of argument in the Zuma case: Full text:
http://blogs.thetimes.co.za/hartley/2008/11/04/npas-heads-of-argument-in-the-zuma-case-full-text/

Mbeki’s reply to Zuma in the Constitutional Court: Full text:
http://blogs.thetimes.co.za/hartley/2008/10/15/mbekis-reply-to-zuma-in-the-constitutional-court-full-text/

Mbeki’s affidavit to the Constitutional Court:
http://blogs.thetimes.co.za/hartley/2008/09/24/mbekis-affadavit-to-the-constitutional-court-full-text/