Constitutional law experts have lashed out at acting prosecuting chief Mokotedi Mpshe for his use of an overturned Hong Kong High Court judgment to support his dropping of the criminal charges against ANC president Jacob Zuma.
Some believe this strengthens the chances of opposition parties in their application for a review of the Zuma decision, due to be heard on June 9.
Mpshe’s office admitted this week that Mpshe had committed an ”innocent oversight” in not crediting Hong Kong Judge Conrad Seagroatt’s 2002 judgment in the ”legal considerations” that formed part of his Zuma statement. Mpshe announced the dropping of charges last week after revelations that former Scorpions boss Leonard McCarthy conspired with others over the timing of the criminal charges against Zuma.
This week politicsweb.co.za revealed striking similarities between Mpshe’s statement and Seagroatt’s judgment. Mpshe cited a number of Commonwealth legal authorities also quoted by Seagroatt and there are resemblances between some of Seagroatt’s and Mpshe’s assertions.
They include Mpshe’s conclusion on why McCarthy’s behaviour constituted an abuse of the legal process. He said: ”It is against this broad principle of abuse of process that the conduct of Mr McCarthy must be seen and tested. The question for close consideration is encapsulated in expressions such as ‘so gravely wrong’, ‘gross neglect of the elementary principles of fairness’, ‘so unfair and wrong’, ‘misusing or manipulating the process of the court’. If the conduct can be so categorised it would be unconscionable for the trial to continue.”
In concluding his 2002 judgment Judge Seagroatt stated: ”It is against this evolved statement of broad principle that the prosecution’s failures and shortcomings with regard to disclosure must be seen and tested. Those for close consideration are best summed up by such expressions as ‘so gravely wrong’, ‘gross neglect of the elementary principles of fairness’, ‘so unfair and wrong’, ‘misusing or manipulating the process of the court’. If those failures can properly be so categorised, are they such as to make it unconscionable that a retrial should go forward?”
Seagroatt’s ruling concerned the case of businessman Lee Ming-tee, who was accused of falsifying the accounts of his Allied Group in the early 1990s. Legal proceedings dragged on for 12 years before Lee was finally convicted in 2004.
Mpshe’s spokesperson, Tlali Tlali, denied claims of plagiarism and dismissed DA calls for Mpshe to stand down. But legal experts also pointed out that the overturning of Seagroatt’s ruling on appeal two years later did Mpshe’s arguments no favours.
Constitutional law expert Marinus Wiechers called Mpshe’s citation of Seagroatt ”the worst kind of legal reasoning and argument. If the authority on which the statement is based was overturned and is knowingly kept silent, it becomes a dishonesty.”
Unisa law expert Shadrack Gutto said it was ”elementary” that the Seagroatt judgment carried less weight than that of the Hong Kong Court of Final Appeal, and compared it with the Supreme Court of Appeal’s overturning of Judge Chris Nicholson’s judgment in the Zuma matter.
”This [the overturning of Seagroatt] brings into the picture yet another problem — was Mpshe choosing to quote from the lower court judgment knowing well that the case was overruled?” Gutto asked.
”He [Mpshe] should at least have noted that. He could have said that, although the judgment was overruled, he believes the sentiments of the lower court. It raises questions of a very, very selective choice of authorities to base your argument on and makes it unbalanced, choosing not to deal with authorities that don’t favour you.”
Wiechers said his main objection was Mpshe’s reference to an ”obscure Hong Kong case when the South African legal principles so clearly defined by Judge [Louis] Harms’s judgment [in the Zuma matter] were neglected”.
He was perplexed about why Mpshe chose to quote Harms while ignoring the ”very clear principle” that a prosecution is not unlawful merely because it was brought for an improper purpose.
Tlali responded that the NPA stands by its decision. ”Those who find the decision we took to be unpalatable have been quick to point out that we based our decision on a case that was overturned —
”The position, properly understood, is that the NPA made reference to that decision in order to demonstrate a point on abuse of process for purposes extraneous to the prosecution itself. This was but one of the many cases that employed the principle —
”Consequently, the mere fact that we made a reference to a case that was later overturned does not invalidate the decision the NPA has taken.”