Five eminent judges of South Africa's highest appeal court, the Supreme Court of Appeal (SCA), have resoundingly overturned a high court decision handed down on 12 September last year by Judge Chris Nicholson that was seen as a major victory for the ANC president, Jacob Zuma, and in the process thrown all the political permutations overboard.
Nicholson's judgement cost ex-President Thabo Mbeki his job, precipitated the mass exodus of ministers loyal to him, and led to the formation of the Congress of the People (COPE), a breakaway faction of the ruling African National Congress. Nicholson agreed with Zuma that a decision by the National Prosecution Authority (NPA) to re-charge him on 18 counts of corruption, racketeering and money laundering was flawed because he was not given the opportunity to make a representation to the national director of public prosecutions.
Nicholson's judgement went on to castigate the then Mbeki administration for political meddling in the functions of the independent NPA, and also backed Zuma's view that charges brought against him were politically motivated.
It was the kind of weapon that Zuma's supporters had been waiting for. Based on that view, the ANC and its president, Jacob Zuma, relieved Mbeki of his post as the leader of the party in government and consequently as state president.
He was replaced by the deputy president of the ANC, Kgalema Montlanthe, until elections in April this year when Zuma would be the ANC's candidate and almost inevitably the state president. In the last elections in 2004, the ANC got 70% of the vote.
Now Zuma is back in harm's way and his ascent to the state presidency has once again taken a heavy blow.
On appeal by the NPA, the five judges unanimously agreed that Nicholson erred. In a rare assault on a fellow judge, Nicholson was slated for having strayed uninvited into a political stadium and red-carded players and spectators alike.
Delivering the judgement, the deputy president of the court, Justice Louis Harms, disagreed that Zuma was entitled to a representation before charges could be brought against him. He also disagreed that there was any evidence of political meddling by Thabo Mbeki and his men in Zuma's prosecution, and eked past judgements to illustrate that the motives behind charges are irrelevant to determining whether a person should face trial or not.
That person, Judge Harms said, must confront the veracity of the charges and subsequently address the motives in another court after the trial. At issue would be the substance of the allegations, not the motives behind it.
Where does that leave Zuma and his backers who have already anointed him as their candidate for the presidential elections in April? The ANC insists that Zuma is still their man and that the SCA judgement changes nothing.
The NPA has also been quick off the mark, declaring that the import of the SCA judgement means that Zuma remains charged. They are busy arranging a new court date. The war goes on with no letup. The spectre of a major presidential candidate going in and out of court in an election year is politically disconcerting, not to mention there being the prospect of some uninformed supporters resorting to violence. Besides, what happens if Zuma wins the presidential election while he stands accused of such serious charges?
Firstly, he will have the power to appoint a new national director of public prosecutions. That is if the current president, Kgalema Montlanthe, does not appoint one. Vusi Pikoli, the suspended NPA director who re-charged Zuma in 2005, was relieved of his post by Montlanthe even though a commission of enquiry set up by ex-President Mbeki to examine his fitness for office found that he was fit.
The ANC is moving fast to convene both Houses of Parliament according to the constitution to make sure that Pikoli is safely despatched. …