South Africa's Protection of Information Bill (The Jacob Zuma saga)

The battle around this Bill rages on. Many suspect that the President feels aggrieved about treatment at the hands of the media. If so, he may be justified. Below is a copy of a letter I sent to the media houses. It was never published.

Why not ... considering that JZ had virtually no one batting for him on the issue?

Readers can decide for themselves whether or not the letter merited publication. I think it did in terms of a justice test. After all, a former judge was saying that, in terms of fundamental law, not only could JZ not be prosecuted, he had actually been victimized.

It bears mentioning that the background included the fact that, in the rape trial, the judge had found that the complainant had actually lied.  It was not a case that the judge found that there was a reasonable doubt to the benefit of JZ.

The finding that she had lied meant that JZ had, in effect, been “set up”, i.e., the victim of a nefarious agenda.

This important implication was accorded hardly any importance or credence by the media, let alone emphasis. The media concentrated on other things as regards the rape trial, mainly detrimental to JZ.

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Here is my letter -

“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 non 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 Ncuka, 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.

 Chris N Greenland

Former Judge of the High Court of Zimbabwe and acting Judge of South Africa”

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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 -

I'm for truth, no matter who tells it.

I'm for justice,

no matter who it's for or against.

Malcolm X