“Was Mpshe’s Zuma decision plagiarised? The Hong Kong judge thinks
so!” (Grubstreet)

The James Myburgh piece that started all the trouble (Politicsweb)

“Double Standard or respect for the rule of law?” (Constitutionally
Speaking blog)

“NPA defends Mpshe” (IOL)

“NPA boss plagiarised judge in Zuma ruling”

The Democratic Alliance’s papers filed with the North Gauteng High
Court for a judicial review of the decision by the NPA to withdraw all
charges against Jacob Zuma

“Mpshe: Zuma decision not an acquittal”

The full statement by Mokotedi Mpshe

“Shaik, Thint and the 16 charges” (The Times)

“Zuma charges: Mpshe to meet Surty” (IOL)

“Fact: Zuma has a case to answer” (Constitutionally Speaking)

“Why would the tapes save Zuma?” (Michael Trapido on Thought Leader)

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There’s only one thing you need to know

It’s all happening on the blogosphere today and the only place you need to be is right here on Grubstreet. Read my exlcusive story: Zuma case should have gone to trial, says Hong Kong judge

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Dear Gill Moodie,

Re – the N.D.P.P. and Jacob Zuma

I am sorry this is probably now too late for you though sometimes controversies of this nature ‘run and run’. Shortly after your last e-mail my colleagues in Hong Kong sent me some downloaded material. One of them, a former lawyer in South Africa, had sent me a copy of Karyn Maughan’s article in the Natal Mercury. Although I do not have a copy of my judgment I can recall enough about it to make the following comments.

1) My judgement had been overruled by the Hong Kong Court of Final Appeal. In the light of this Mpshe should not only have given proper attribution to the passages in my judgement upon which he obviously relied, but should have explained why he relied upon them in preference to the H.K.C.F.A’s decision. There was certainly room for him to do so.

2) His own statement is so limited and sketchy that I find it impossible to identify why he was relying on my judgement. In the Hong Kong case the behaviour of the prosecution which I criticised was its failure to disclose material evidence in relation to an expert witness upon whom it relied as pivotal to its case. The first“whiff” of such evidence did not emerge until the jury were considering their verdicts and I had to stop the trial at that stage – a very rare event. The C.F.A. did not disagree with that decision; in effect they approved it.

3) What Mpshe seems to have taken as the justification for his decision was not a material aspect of the trial procedure but a decision made by some branch of the investigative process as to when and where Jacob Zuma should be charged on the basis of political considerations. That is an entirely different scenario. Many might argue that motivation in relation to timing of a charge is very different from manipulation of the evidence available.

4) It is very strongly arguable that he should have let the trial process begin before a judge, leaving the aspect which seems to have dominated his proper role as the prosecutor (the old adage being a ‘prosecutors’ job is to prosecute) to be determined by the judge with the N.D.P.P. being entirely candid (as he should be) as to the conduct of the investigative and prosecuting agencies. It is easy from my position in the U.K. (or Hong Kong) to be critical of Mpshe’s statement but being as objective as I can, he really did not get to grips with the situation and seems to have made selective use of my judgement to try and put some beef into a statement which is rather short on substance. I hope this is helpful and seems reasonable. I have been away in France and so was not aware of your e-mail of 29th April until today.

Regards Conrad Seagroatt

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On the eve of Jacob Zuma’s inauguration as South African President, the judge whose decision was key to dropping corruption charges against the ANC president has said that the country’s chief prosecutor made a mistake in law.

Mpshe

Acting head of the National Prosecuting Authority Mokotedi Mpshe last month controversially dropped a corruption prosecution against Zuma, saying the investigation had been tainted by an apparent conspiracy by former Scorpions head Leonard McCarthy and ex-NPA head Bulelani Ngcuka. He used a case in Hong Kong as one of this key reasons for dropping the charges.

But the former Hong Kong judge behind that important decision, Justice Conrad Seagroatt, who earlier commented to Grubstreet on Mpshe’s plagiarism of his judgment, has now told me that Mpshe was wrong to use his judgment to justify dropping the charges against Zuma, due to be inaugurated as president of South Africa at the Union Buildings in Pretoria tomorrow.

He said, echoing the sentiments of other top SA prosecutors and widely reported in the local press, that he should have allowed the case to go to trial.

It is very strongly arguable that he should have let the trial process begin before a judge, leaving the aspect which seems to have dominated his proper role as the prosecutor (the old adage being a ‘prosecutors’ job is to prosecute) to be determined by the judge with [Mpshe] being entirely candid (as he should be) as to the conduct of the investigative and prosecuting agencies. It is easy from my position in the U.K. (or Hong Kong) to be critical of Mpshe’s statement but being as objective as I can, he really did not get to grips with the situation and seems to have made selective use of my judgement to try and put some beef into a statement which is rather short on substance.

Read the full story

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“Was Mpshe’s Zuma decision plagiarised? The Hong Kong judge thinks

so!” (Grubstreet)

http://grubstreet.co.za/2009/04/30/was-mpshes-zuma-decision-plagiarised-the-hong-kong-judge-thinks-so/

The James Myburgh piece that started all the trouble (Politicsweb)

http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page71619?oid=125134&sn=Marketingweb+detail

“Double Standard or respect for the rule of law?” (Constitutionally Speaking blog)

http://constitutionallyspeaking.co.za/?p=974

“NPA defends Mpshe” (IOL)

http://www.iol.co.za/index.php?set_id=1&click_id=13&art_id=nw20090416154009425C713094

“NPA boss plagiarised judge in Zuma ruling”

http://www.iol.co.za/index.php?set_id=1&click_id=2996&art_id=vn20090415051139225C558094

The Democratic Alliance’s papers filed with the North Gauteng High Court for a judicial review of the decision by the NPA to withdraw all charges against Jacob Zuma

http://www.da.org.za/docs/7333/DA%20NPA%20NOTICE%20OF%20MOTION.pdf

“Mpshe: Zuma decision not an acquittal” (Mail & Guardian)

http://www.mg.co.za/article/2009-04-06-mpshe-zuma-decision-not-an-acquittal

The full statement by Mokotedi Mpshe

http://www.friendsofjz.co.za/documents/NPA_Zumadecision.pdf

“Why would the tapes save Zuma?” (Michael Trapido on Thought Leader)

http://www.thoughtleader.co.za/traps/2009/03/30/why-would-the-tapes-save-zuma/

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The judge whose decision led to the withdrawal of charges against ANC president Jacob Zuma says that acting National Prosecuting Authority head Mokotedi Mpshe’s failure to cite him in the landmark decision was not proper, sloppy and undisciplined.

A 2002 judgment in Hong Kong by Justice Conrad Seagroatt, who is now retired, was used without attribution in Mpshe’s statement when the NPA dropped the corruption, racketeering, fraud and tax evasion charges against Zuma recently.

The NPA defended Mpshe after canny blogger James Myburgh at Politics.web spotted the similarities and NPA spokesman Tlali Tlali said it was an “innocent oversight”. (Click here to read the IOL story). The NPA also rejected calls by the Democratic Alliance for Mpshe to resign but Grubstreet has been wondering what Seagroatt himself would have to say. so was it plagiarism? Justice Seagroatt thinks so. Read the full story

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Thank you for your e-mail of today with copy of James Myburgh’s article in ‘South Africa at a Glance’. Now I know that it is nothing to do with Am Kau Han’s case the picture is clearer. I have a keen recollection of my decision in the Lee Ming Tee case in which the Court of Final Appeal overturned my judgement (incidentally Mason, former C.J. of Australia, and a member of that Court delivering the leading judgement, was the leading judge in Jago v District Court of New South Wales). The C.F.A and I remain in fundamental disagreement and although I have some idea as to the prevailing notion behind that judgement, it would not be appropriate for me to comment further. Both Mason’s and my judgement need full reading in order to see the question of the prosecution’s duty and the matter of abuse of process in its full context. It may be that the C.F.A. was concerned to bring the abuse of process arguments and principles within the narrow confines of Hong Kong rather than adopt the broader common law implications. But that, as they say, is another story. By the way, I was surprised to note that James Myburgh referred to my decision as ‘an obscure ruling’. I was asked to deliver a paper on the legal issues involved at the International Bar Conference of 2003 in Brussels and it is still a ‘hot issue’ in Hong Kong (I am informed at a distance). You are, of course, not concerned with this and I will deal with your questions as best I can in view of the overall timing of events.

How do you feel about one of your judgments being used without acknowledgment in such an important prosecutorial decision?

1) I would have expected proper attribution if only because of the professional legal tradition and convention. I have not seen the full text of Mpshe’s decision but relying on Myburgh’s schedule of extracts, where Mpshe has directly lifted sentences or paragraphs from my judgement, it would have been proper to identify the author.
He correctly makes reference to principles enunciated by the respective judges in R v Derby Crown Court ex parte Brooks, Jago v District Court of N.S.W., Connelly v DPP, R v Latif, R v Martin, and R v Hui Chi Ming. Since the Acting National Director of Public Prosecutions structured his statement around my judgement – or so it seems on the basis of the extracts quoted by Myburgh – it was nonetheless sloppy and undisciplined to put the statement forward as emanating from his own reasoning. These days plagiarism is an oft-used word and discipline in universities, for example, has been lax. It is, however, tightening. Even an ’A’ level student would be expected to give proper attribution. When I was a student it was occasionally the resort of a bold historian to quote ‘imaginatively’ from an identified authority. In short, if a judgement is used, it should be properly attributed.

Do you think it is plagiarism?

Strictly speaking it is plagiarism, but lawyers do not get worked up over such things. An imaginative lawyer will often quote the language of another advocate/judge without adding the cumbersome ‘as X said in A v B’. However, a senior government lawyer making a statement in support of a decision of some importance should cite properly, cases or judgements used, if only to lend weight to his own. Mpshe may have thought that the scattered references to the cases cited and incorporated into the text of argument or ‘ratio decidendi’ were sufficient. As I have said, that was a sloppy approach which even a law student would be tutored against.

Do you think it fitting that a leading legal mind would use another judgment without acknowledgment?

3) I think I have answered this in (1) above.

What do you think about your case being used in another country’s (based on Roman Dutch law and British common law) legal processes?

4) There is absolutely no reason why a common law judgement should not be used in another country’s system, be that Romano-Dutch or Common Law or any codified system. The principles hold good on a broad basis as the European Courts have exemplified.

Is there anything else you would like to add?

5) I think I have said enough. I do not have a copy of my judgement to hand although my colleagues in Hong Kong can get a copy to me quickly if necessary. I would like to see the full text of Mpshe’s statement in case there is any other comment I can offer.
Finally, if you quote me, I will appreciate it, if it is done in an unedited form and where I have indicated that my comment is subject to my seeing a full text, that it is so indicated. Lawyers/judges tend to have grave reservations concerning journalistic licence, and although I am retired, I remain alert to what goes on and dislike being quoted out of context or selectively.

With kind regards,
Conrad Seagroatt

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1. The NPA is saying it’s no biggie that its acting director Mokotedi Mpshe plagiarised parts of his historic decision to drop the charges against ANC president Jacob Zuma from a six-year-old ruling by a Hong Kong judge. Everyone’s got the story but here’s what the NPA sposkesman told The Star:

We are recognising that what we said was based on that judgment and we are in no way attempting to pass that ruling off as our own. We regret the oversight, but it in no way detracts from the decision that advocate Mpshe reached.

Well, that’s alright then Hacks, hack away! A sordid end to a scandalous saga. Read the original story by James Myburgh at Politics.web here. The comments are very entertaining.

2. Business Day reports that the ANC’s Fikile Mbalula is accusing former intelligence minister Ronnie Kasrils as one of the key plotters in a political conspiracy against Zuma. This after he took a few pot shots at former president Thabo Mbeki. What’s up, Fikile? You’re after Julius’s job? Read the story here.

3. Curiouser and curiouser. Business Day also has a story saying that a ministerial review commission report shows that Kasrils sought more oversight over intrusive methods of intelligence gathering in 2006. Which means he might have known about the spy tapes of telephone recordings between Bulelani Ngcuka and Leonard McCarthy (that led to the dropping of the charges against Zuma). The thot plickens. Read the story here.

4. The Times says that the SABC canned a Special Assignment show on political satire hours before it was due to be aired that was to feature interviews with cartoonist Zapiro.
Read the story here.

5. And suspended national police commissioner Jackie Selebi, who faces charges of corruption and defeating the ends of justice, has had his trial postponed to May 4 at the request of the state, which wants more time to prepare. Get to it, manne. You’re being paid with taxpayers’ money.

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The new stars of the show are undoubtedly former Scorpions boss Leonard McCarthy and former NPA head Bulelani Ngcuka after being implicated in a political conspiracy against ANC president Jacob Zuma.

"Did you say conspire or perspire?"

When he announced his decision to drop all charges against Zuma, acting NPA head Mokotedi Mpshe indicated that there would be a commission of inquiry into the two men’s conduct but a senior NPA source has told the The Times that, in fact, they will be prosecuted. Read the story here though both men declined to comment.
Now the focus has shifted (Zuma sighs with relief) and we’re going to be seeing and hearing a lot about Ngcuka and McCarthy over the next year so what are they up to these days?

Read the full story

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1. Packing for Perth or just another day in South Africa? Today it’s all about analysing the NPA’s decision to drop the charges against ANC president Jacob Zuma. One of the best comes Tim Cohen who wrote in the Daily Dispatch that the NPA decision shows us that the dream of South Africa having a special claim to the moral highground is dead.

We can claim no special place, no special rights, no special privileges. We are no longer miracle workers, just another grubby participant in the carnival of global politics, subject to base desires, enduring of haughty leaders, ever hopeful of finding just one decent person to carry our banner. Never before has the true nature of the South African State been so obvious, so plainly laid open to public view and so revealing for what it is. Much as we pretend otherwise, the hard truth is we live in a quasi-totalitarian State. And the rules that apply to single-party dominant States apply to us, too, though we pretend they don’t.

Read the full piece here.

2. Veteran investigative hack Sam Sole at the Mail & Guardian has an excellent, insightful piece on the tangled web around the arms deal involving Schabir Shaik and Zuma’s alleged role in it. Was Zuma Shaik’s puppet or a mercenary trying to squeeze as much money as he could out his old struggle buddy? It is well worth a read. Click here.

3. Senior Counsel Paul Hoffman says that the acting NPA head Mokotedi Mpshe’s concession that the prosecution team, led by Billy Downer, remains of the view that any decision in the matter ought to go court has laid the door wide open to civil litigation — including an urgent application for an order interdicting Zuma from accepting nomination for the presidency.

The fundamental error in his reasoning is that he is unable to point to any prejudice in the legal (as against political) sense that Zuma can possibly claim to have suffered as a consequence of being charged after the ANC’s Polokwane conference rather than before it. The subsidiary decision to withdraw charges against Thint (the arms dealer in question) highlights the fallacy in the reasoning of the NPA. Thint was obviously not a candidate at Polokwane and the two-week difference in timing of the arraignment of both accused is therefore neither here nor there .

Read the full piece here.

4. DA leader Helen Zille says on her Facebook page that party “is now finalising its plan to take the matter further through the legal system“.

5. A senior NPA official told The Times’s that the NPA is, in fact, going to prosecute former Scorpions boss Leonard McCarthy and former NPA boss Bulelani Ngcuka for violating sections of the NPA Act — rather than recommending an inquiry as indicated by Mpshe. Read the story here. And to throw my two cents in here, suspended police commissioner Jackie Selebi could now escape trial for corruption and defeating the ends of justice on the same basis as Zuma (because there was a political conspiracy against him) after being referred to in the transcripts of tapped phone conversation between Ngcuka and McCarthy. If you’ve forgotten what that’s about, click here to read the charge sheet at Financial Mail’s website.

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