CAPE TOWN — Unlike the alleged terminal health reasons given by renowned Durban golfer and former Zuma advisor, Schabir Shaik for his medical parole, Msholozi is in rude apparent health, and lacks the conviction (in the criminal sense), for (a future President) Ramaphosa to pardon him. In fact, there’s little constitutionally the ANC can do to legally offer Zuma an exit deal – unless he seduces the NPA by turning State witness and selling out all the key State Capture players. Normally this legal provision is reserved to get small fish to hook big fish, but in this case, it would be the equivalent of forsaking a big fish to catch a range of different-sized fish, some of the quite weighty (aka the Guptas). Which-ever way Cyril turns, the nation’s final legal resort and guide in all matters are there to ensure Zuma doesn’t get special treatment. Cyril helped craft the Constitution that way in the hope of creating a more egalitarian society. It’s proved the measure of last resort in preventing South Africa from politically amoral implosion. This astute and concise legal brief of Zuma’s real options is a must read in the context of what’s about to happen. Msholozi must surely get his day in court. (This piece below is published with permission of James Grant.) – Chris Bateman
By James Grant*
1. Apply for “immunity” or “indemnity” – under the Indemnity Act 35 of 1990, the Indemnity Amendment Act 124 of 1992 and the Further Indemnity Act 151 of 1992. However, these Acts have all now been repealed by the Promotion of National Unity and Reconciliation Act 34 of 1995 and these options are closed.
2. Apply for immunity as a “state witness” (under s 204 of the Criminal Procedure Act). However:
2.1. the (section 204) witness cannot be the kingpin/mastermind (such as a drug lord), but needs to be a foot soldier or low-level functionary (such as a street dealer). For instance, the scheme is designed to allow a successful prosecution of a drug lord by relying on the testimony of a street-level drug dealer – in exchange for an immunity from prosecution for the street dealer. It would not make sense to give the drug lord immunity to secure his/her testimony against the street dealer.
2.2. It is not within the competence of anyone but the NPA to offer this immunity. It is certainly not something which a president or a president in waiting may grant – or even offer.
3. Rely on the immunity granted in the Commissions Act – that any evidence given in a judicial commission cannot be used against the witness. This witness may, however, nevertheless be prosecuted and the state may produce and rely on other evidence against that witness.
4. Presidential Pardon? This is possible under the prerogatives enjoyed by the president, but:
4.1. It cannot be granted by a president to him/herself. This might seem self-evident, but in SA, lately, it is necessary to state.
4.2. The subject can only be granted this pardon after he or she has been convicted; and
4.3. This grant of immunity would be subject to a constitutional challenge – it would have to be, at least, rational. It must be directed – at that point in time (after conviction) – at some legitimate purpose. One may wonder what that could be and how that could be reconciled with the treatment of people as equals.
In conclusion – there as so many options – none of them seem to offer any way out for Zuma and none give reason for either continuing to wiggle or to entertain any more wiggling. It seems there is one option left: stand trial like anyone else.
- James Grant [B Proc LLB BA Hons (psych) PhD] is an Advocate of the High Court of South Africa and Visiting Associate Professor of Law, University of the Witwatersrand. Grant has lectured and specialises in criminal law and delict with particular emphasis on the implications of the Constitution on both areas of law. He completed his psychology honours on the moral reasoning of Moses Sithole, South Africa’s most notorious serial killer.