O 121819Z JAN 09
FM AMEMBASSY PRETORIA
TO SECSTATE WASHDC IMMEDIATE 6918
INFO SOUTHERN AF DEVELOPMENT COMMUNITY COLLECTIVE IMMEDIATE
AMCONSUL CAPE TOWN IMMEDIATE 
AMCONSUL DURBAN IMMEDIATE 
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UNCLAS PRETORIA 000047 
 
 
E.O. 12958: N/A 
TAGS: KJUS PGOV KDEM SF
SUBJECT: SUPREME COURT OF APPEAL CLEARS WAY TO RECHARGE ZUMA 
 
¶1. Summary:  South Africa's five-member Supreme Court of 
Appeal overturned on January 12 a September decision setting 
aside a corruption indictment against ANC President Jacob 
Zuma.  Speaking for the court, Deputy Judge President Louis 
Harms upbraided the lower appeals court judge, Chris 
Nicolson, for comments on the subject of "political meddling" 
that were beyond the scope of the legal question before him. 
Harms said Nicolson had failed in his duties as a judge. 
Issuing a statement on judgment, the ANC expressed its 
respect for the court, and reaffirmed its determination that 
Zuma will be South Africa's next president.  The text of the 
ANC statement and excerpts from the Supreme Court of Appeal 
Ruling are included below.  End summary. 
 
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ANC Notes Appeal Court Judgment on NPA Appeal 
--------------------------------------------- - 
 
¶2.  Begin Text:  The African National Congress (ANC) has 
noted the Appeal Court judgment on the National Prosecuting 
Authority's appeal against the Pietermaritzburg High Court 
decision last September that halted the prosecution of ANC 
President Jacob Zuma. 
 
It is important to note that this judgment has nothing to do 
with the guilt or otherwise of the ANC President.  Nor does 
it make any pronouncements on the merits of the charges 
previously brought by the  NPA. 
 
The ANC respects the decision of the court without 
reservation. 
 
The ANC and its President reserve the right to pursue all 
options available in law. 
 
The ANC reiterated its position that the judgment will not 
affect the decision of the ANC that Zuma will be the anc's 
presidential candidate for the 2009 elections. 
 
The ANC will not accept that a decision democratically taken 
by the ANC membership be reversed on the basis of untested 
allegations. 
 
¶3. End Text. 
 
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Excerpts from the January 12 Court of Appeal Judgment 
--------------------------------------------- -------- 
 
¶4. Begin Text Excepts: 
 
.... The litigation between National Director of Public 
Prosecutions (NDPP) and Mr. Zuma has a long and troubled 
history and the law reports are replete with judgments 
dealing with the matter.... In the application, which is the 
subject of this appeal, Mr. Zuma sought am order declaring 
that both the Pikoli and Mpshe decisions (NDPP decisions to 
indict Zuma) were invalid and, consequently, they were to be 
set aside. Nicolson J (Judge Nicolson) obliged by setting 
aside he latter decision (the former having lapsed).  This 
brought the prosecution to an end -- at least for the time 
being. 
 
.... It would be naive to pretend that we are oblivious to 
the fact that Nicolson J's judgment has had far-reaching 
political consequences and that there may be an attempt to 
employ the judgment to score political points.  It is 
accordingly necessary to state at the outset what the case is 
about as opposed to what it is not about.  An applicant is 
required to state out his case in the founding affidavit. 
This Mr. Zuma did.  He asserted that his case for setting 
aside the two decisions to prosecute him was premised on ... 
not having been invited to make representations in 
fulfillment of a constitutional requirement.... 
 
.... It follows from this that "political meddling" was not 
an issue that had to be determined.  Nevertheless, a 
substantial  part of his (Nicolson's) judgment dealt with 
this question; and in the course of this discussion he 
(Nicolson) changed the rules of the game, took his eyes off 
the ball, and red carded not only players but also spectators. 
 
.... However, it must be understood that this aspect of the 
judgment is not about the guilt or otherwise of Mr. Zuma or 
whether the decision to prosecute him was justified.  It is 
even less about who should be president of the ANC; whether 
the decision of the ANC to ask Mr. Mbeki to resign was 
warranted; or who should be the ANC's candidate for President 
in 2009.  More particularly, this aspect of the judgment is 
not about there was "political meddling" in the 
decision-making process. it is about whether the findings 
related to political meddling were appropriate or could be 
justified on the papers.... 
 
.... The underlying theme of the court's judgment was that 
the judiciary is independent.... This commendable approach 
was unfortunately subverted  by a failure to confine the 
judgment to the issues before the court.... 
 
¶5. End text excerpts. 
 
 
BOST