'No Zuma trial before late 2010'

ADRIAAN BASSON - Sep 20 2008 06:00

The National Prosecuting Authority (NPA) will be lucky to bring new criminal charges against ANC president Jacob Zuma before late 2010, legal experts said this week.

They were reacting to Judge Chris Nicholson's watershed judgement last Friday, which paved the way for Zuma to be sworn in as state president after next year's general election.

Acting NPA boss Mokotedi Mpshe confirmed this week that the NPA would appeal against Nicholson's judgement and decide on recharging Zuma only after the appeal has been heard.

In a bizarre omission from his press statement on Wednesday Mpshe did not mention the NPA's intention to appeal Nicholson's ruling against the state's application to strike out certain sections of Zuma's court papers referring to a political conspiracy against him.

Nicholson rejected the application, concluding that Zuma was not wrong to infer a conspiracy against him, based on the NPA's decision not to charge him in 2003 and subsequent political events.

Mpshe, however, confirmed on Thursday that the NPA would also seek to overturn this part of Nicholson's judgement.

The NPA's decision to apply for leave to appeal against the court's ruling that Zuma's case had to be reviewed has already infuriated Zuma's allies. Confirmation of a further appeal against the judge's comments about a political conspiracy is likely to raise the political temperature .

But a legal commentator insisted that the NPA's desire to overturn the entire Nicholson judgement is understandable. "Zuma wants to apply for a permanent stay of prosecution if he is recharged. They [the NPA] can never go into such an application with Nicholson's judgement standing. They will be blown away," the source said.

The upshot is that there are potentially six more legal hurdles for the NPA to cross before recharging Zuma:

If granted leave to appeal by Nicholson, the NPA will approach the Supreme Court of Appeal
(SCA) in Bloemfontein to hear the case urgently.

Mpshe has said he believes the SCA could rule before the end of this year.

It is considered likely that whoever loses in Bloemfontein will appeal to the Constitutional Court. Both matters -- the duty of the NPA boss to review decisions to recharge and allegations of political conspiracy in court papers -- have potential constitutional implications and could be heard by the court in the first half of next year.

If the Constitutional Court overrules Nicholson the NPA will have to receive representations from Zuma's legal team before deciding to recharge him. If it still believes he has a case to answer it could recharge Zuma next year. If it loses in the Constitutional Court there will be little scope to recharge.

Zuma's legal team has indicated he will apply for a permanent stay of prosecution if the state reinstates charges. The Pietermaritzburg High Court could hear such an application towards the end of next year, with judgement by year-end.

Whoever loses in Pietermaritzburg is likely to start a fresh appeals process - first by going to the SCA and then to the Constitutional Court. "The NPA will be lucky if this [appeal] process is finalised before the end of 2010," a legal source said.

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Nicholson's judgement sparked an intense debate in the legal fraternity this week. "All agree that this is an extraordinary judgement," said a Johannesburg advocate.

"I believe he [Nicholson] got it spectacularly wrong, but there are colleagues who differ strongly."

The most contentious aspect was Nicholson's "political inferences" that Zuma has reason to believe President Thabo Mbeki, two justice ministers and the NPA conspired to prevent him from becoming ANC president.

Some observers called it a "political judgement", while others blamed him for "making findings based on theory, not fact".

Said one of Nicholson's critics: "He went out of his way to deal with things not in the papers before him. He talks about every windmill in sight. It's quite remarkable."

Meanwhile, The Star reported on Thursday that Mpshe has written to French arms firm Thint to say that the charges against them have been provisionally withdrawn. Thint, Zuma's co-accused, was scheduled to bring a permanent stay application on November 25.

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