Pot, kettle, black
15 November 2006
Last week, the Supreme Court of Appeal (SCA) dealt a major legal and political blow to Jacob Zuma when it turned down Schabir Shaik's criminal appeal against his fraud and corruption convictions.
It was a set-back too for Zuma's backers in Cosatu and the SACP, who appeared demoralised by the judgment. However, a minor slip-up (albeit an embarrassing one) by the SCA has allowed Zuma-partisans in the media and the Tripartite Alliance to go on the offensive once more.
The error occurred in a separate judgment by the SCA on Shaik's civil appeal against three orders of confiscation made by Judge HG Squires in the high court.
In the introduction to their findings the judgment stated:
"Between 1996 and 2002 Shaik and Mr Jacob Zuma engaged in what the trial court appropriately called ‘a generally corrupt relationship' which involved frequent payments by Shaik to or on behalf of Zuma and a reciprocation by Zuma in the form of the bringing to bear of political influence on behalf of Shaik's business interests when requested to do so."
However, Judge Squires had not actually used the phrase. Moreover, in a letter to Business Day some time before Squires had complained about the press's continual misattribution of that phrase to him:
"I can find no such mention of my having made any such comment. If you have already read the judgement , and in it this phrase - " a generally corrupt relationship" - occurs I would be grateful if you would advise me of the page and line number in which the statement appears. The only question in that trial was Shaik's own state of mind when he made the admitted payments to, or on behalf of, Jacob Zuma, namely, whether by doing so, he intended to influence the recipient in the exercise of his official duties. Jacob Zuma's state of mind when he received these benefits was never an issue, nor was any finding made about it. There was no need for any conclusion regarding the state of affairs between them, nor was there one made."
Over the weekend The Weekender -- Business Day's Saturday edition -- led with a story about the error. The two journalists who wrote it up, Vukani Mde and Karima Brown, put an aggressively pro-Zuma spin on it all, claiming that it "raises serious questions about the court's ability to guarantee an accused person's [namely Zuma's] fair trial rights".
Brown and Mde accused the SCA of failing "dismally" in their "constitutional duty" to avoid rely on public perceptions to convict an accused.
Ironically, the two made a number of serious errors of their own.
They claimed that the SCA had "attributed the phrase to Squires in its judgment upholding Shaik's corruption and fraud convictions" (it was in the other judgment); and, had made "at least two references" to the phrase (there was only one.)
They further grossly impugned the professionalism and integrity of the SCA judges by strongly suggesting that they "may not have read Squires's original judgment convicting Shaik, and may have relied only on news reports". In fact, there are repeated references to Squires's actual findings in the SCA judgments.
On Monday Mde and Brown reported in Business Day that Cosatu general secretary, Zwelinzma Vavi, had told them that the five SCA judges should resign or be impeached.
"Instead of going through Squires' judgment line by line, the Supreme Court merely parroted newspaper editorials. The five of them clearly must go. If they can do this in such a high profile case, imagine what they do to ordinary, poor people", he said. Vavi added that he would table a secretary's report to the federation's six national office-bearers today, asking them to back a demand for the resignation or impeachment of the judges."
In the article Mde and Brown added yet another error to their roster, claiming (incorrectly) that the phrase that the relationship between Shaik and Zuma was ‘generally corrupt' had been "central to the failure of Shaik's appeal".
Yesterday the Registrar of the SCA issued a statement in response to the media reports which had pointed out "that the SCA erred in ascribing the words ‘a generally corrupt relationship' to the trial court." The statement acknowledged that the quoted words had "incorrectly and regrettably" been ascribed to the trial judge. It pointed out:
(i)The misattribution did not occur in the SCA's judgment in the criminal appeal. The quote is to be found only in the introduction to the court's subsidiary civil judgment on the forfeiture of Shaik's assets.
(ii) As in the case of all appeals, the SCA made its own independent findings. They are based on an exhaustive review of the evidence and the record of the trial court - this is apparent from the SCA's extensive judgment.
(iii) The trial court found in the context of the corruption charges that the evidence established a "mutually beneficial symbiosis" between Mr Shaik and Mr Zuma. The trial court stated the following:
‘It would be flying in the face of common sense and ordinary human nature to think that he (Shaik) did not realise the advantages to him of continuing to enjoy Zuma's goodwill to an even greater extent than before 1997; and even if nothing was ever said between them to establish the mutually beneficial symbiosis that the evidence shows existed, the circumstances of the commencement and the sustained continuation thereafter of these payments, can only have generated a sense of obligation in the recipient.
‘If Zuma could not repay money, how else could he do so than by providing the help of his name and political office as and when it was asked, particularly in the field of government contracted work, which is what Shaik was hoping to benefit from. And Shaik must have foreseen and, by inference, did foresee that if he made these payments, Zuma would respond in that way. The conclusion that he realised this, even if only after he started the dependency of Zuma upon his contributions, seems to us to be irresistible.'- See judgment of the court, trial transcript, page 6556.
(iv) The SCA considered these findings to be central to the conclusion of the trial court on count 1 - see paragraph (33) of the SCA judgment...
(v) The trial court's view of the ‘symbiosis' between Mr Zuma and Mr Shaik was confirmed by the SCA in various parts of its judgment, which ultimately conveyed that on the evidence in this case an overall corrupt relationship existed.
(vi) Self-evidently the case was one against Mr Shaik and not one against Mr Zuma. The judgment necessarily had to deal with the relationship between Mr Shaik and Mr Zuma on the evidence presented in this case, and does not pre-empt any finding that may subsequently be made in respect of another accused in another trial."
In her weekly column in Business Day today Karima Brown accused the SCA of being "sloppy", "callous" and "unprofessional". She took particular issue with the consensus among legal experts that the mistake, while embarrassing, was a minor one.
She stated, "Senior lawyers, law professors and judges who attempt to pooh-pooh the controversy and pretend that it means nothing, are not doing the institution any favours. Arrogant, smug schoolboy solidarity and other knee-jerk responses will only increase suspicions that the courts in the Zuma matter have been at best incompetent and at worst, malicious."
The really interesting question is: who was it in the media who drummed into the public consciousness the idea that Judge Squires had used the phrase a "generally corrupt relationship" in his original judgment? 10 examples of two particular journalists at Business Day misattributing this phrase follow below:
Vukani Mde and Karima Brown: "Judge Hillary Squires characterised it as a 'symbiotic relationship'. He found there was 'really overwhelming and convincing' evidence to show that it was generally corrupt." Business Day 3rd June 2005
Karima Brown and Vukani Mde: "Judge Hillary Squires' [found] that Zuma and Shaik had a 'generally corrupt relationship'," Business Day 6th June 2005
Karima Brown: "Judge Hillary Squires' judgment last week - that the relationship between Shaik and Zuma was 'generally corrupt' - has catapulted the issue of corruption to the highest levels of the ruling party." , Business Day 8th June 2005
Vukani Mde and Karima Brown: "In his judgment convicting Durban businessman Schabir Shaik, Judge Hilary Squires found Zuma had a 'generally corrupt relationship' with Shaik, and said funds given to Zuma by Shaik were gifts, not loans." Business Day 7th October 2005
Vukani Mde and Karima Brown: "Former deputy president Jacob Zuma takes centre stage at the Durban Magistrate's Court today as his trial on charges relating to his 'generally corrupt' relationship with businessman Schabir Shaik finally dawns", Business Day 11th October 2005
Karima Brown and Vukani Mde: "On Wednesday, Durban businessman Schabir Shaik won the right to appeal against his conviction for a 'generally corrupt' relationship with Zuma", Business Day 18th November 2005
Karima Brown and Vukani Mde: "Zuma has two criminal investigations against him. He is already on trial on two counts of corruption. He is likely to face further charges of perjury and tax evasion, all stemming from a relationship with Schabir Shaik which was found by the judiciary to be 'generally corrupt'." Business Day 25th November 2005
Vukani Mde: "In his judgment convicting Shaik on all counts, Judge Hilary Squires described the Zuma-Shaik symbiosis as ‘a generally corrupt relationship'." Business Day 28th December 2005
Vukani Mde and Karima Brown: "In convicting Shaik, Judge Hilary Squires concluded there was a 'generally corrupt relationship' between Zuma and Shaik" Business Day 23rd August 2006
Karima Brown and Amy Musgrave: "Shaik was found [by Judge Squires] to have had a 'generally corrupt' relationship with Zuma". The Weekender 7th October 2006
If it was 'unprofessional' and 'incompetent' for the SCA to make this misattribution once - and in a way that was incidental to their findings - what does it say about Mde and Brown, the political correspondent and political editor ofBusiness Day? Not only have the two repeated this error on numerous occasions, but they have placed it at the centre of their analysis and reporting on the Zuma affair.
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