The Supreme Court of Appeal (SCA) rules on Monday in the state’s appeal against Judge Chris Nicholson’s ruling in favour of presidential frontrunner Jacob Zuma, in a crucial credibility test for the National Prosecuting Authority.
Judgement will be handed down in a case that witnessed a face-off between Zuma, leader of the ruling African National Congress (ANC), and axed former president Thabo Mbeki.
Zuma will hear his fate two days after the ANC releases its 2009 election manifesto in the Eastern Cape on Saturday, which names him as its presidential candidate.
But despite this court case being fraught with political drama culminating in the recall of the president of the country, law experts say Monday’s judgement is just another dispute in a drawn-out war.
”This is really a very preliminary skirmish in the bigger battle,” says constitutional law expert Professor Pierre De Vos.
The Bloemfontein court must rule mainly on two aspects in the appeal lodged by the National Director of Public Prosecutions (NDPP) against a Pietermaritzburg High Court ruling that changed the course of politics.
The first aspect is whether Zuma was entitled to make representations before the NDPP decided to recharge him with corruption and fraud in December 2007, ten days after Zuma beat Mbeki in the ANC leadership race.
The second, and perhaps more interesting, is whether Pietermaritzburg High Court Judge Nicholson was correct in implying in his September 2008 judgement that there was political meddling by Mbeki in the decision to charge Zuma.
Nicholson’s ruling — which also found that Zuma was indeed entitled to make a representation, effectively halting his prosecution — had a major impact on South Africa’s political history.
The top leadership of the ANC used the judgement to recall Mbeki as president, exposing Zuma-Mbeki factionalism that ultimately led to the birth of a breakaway party.
De Vos says the judges of the Supreme Court of Appeal may decline to engage with Nicholson’s political interference finding, which is being contested by both Mbeki and the NDPP.
”The appeal court judges can either criticise Judge Nicholson for venturing into this whole area without actually making a pronouncement on the matter themselves, or they can endorse Judge Nicholson’s implicit findings, or reject them implicitly.
”On that score, many lawyers think there is quite a strong case to be made that it [the political interference finding] should not have been … there is a chance that that decision would be reversed.
”Or the court might just decide to say that it has nothing to do with the case and decline to engage,” says De Vos.
Important test
Another expert in constitutional law, Professor Shadrack Gutto, believes the appeal is an important test for the NDPP.
”It is more about the credibility and constitutional integrity of the NPA than anything else they are fighting for. The NPA is defending itself, its image and integrity.
”This [the findings of political interference in the decision to recharge Zuma] is in a written judgement, it will be on record in the law books,” says Gutto.
If the Supreme Court of Appeal agrees with Nicholson that Zuma was entitled to make representations before being recharged, he remains a free of charges. That is, until the NDPP decides to charge him for a third time, which many analysts consider a likely scenario.
The corruption case against him first came to light in 2003, when former chief prosecutor Bulelani Ngcuka announced there was a prima facie case against Zuma, but that he would not be charged alongside his financial adviser, Schabir Shaik.
Shaik was convicted on fraud and corruption charges in 2005, amongst others related to an alleged bribe he negotiated between Zuma and a French arms company.
Days later, Mbeki fired Zuma as deputy president of the country.
Shortly after that, Ngcuka’s successor, Vusi Pikoli, charged Zuma with corruption.
But in September 2006, Judge Herbert Msimang struck his case of the roll, refusing the state’s request for a postponement.
In December 2007, Zuma, who despite his sacking as deputy president of the country still remained deputy president of the ANC, successfully challenged Mbeki’s leadership at the ANC conference in Polokwane.
That same month, acting NDPP Mokotedi Mpshe decided to charge Zuma again. This time he faced charges of corruption, fraud, money laundering and racketeering.
The charges hung over his head until September 2008 when Nicholson ruled in his favour, finding that the NDPP should have first offered him the opportunity to make a representation before deciding to recharge him.
The end is not in sight
”This is really very technical,” says De Vos. ”If the case goes against Mr Zuma, the next case will really centre around whether there shouldn’t be a permanent stay of prosecution on the basis that it would be impossible for him to get a fair trial.”
The findings of political meddling will come in useful here for Zuma’s lawyers, he adds.
”The two aspects before the court seem to linked … but Mr Zuma might win some of the case and lose some of the case, they are not necessarily linked,” says De Vos.
Either way, the end is not nearly in sight.
”The losing side will end up appealing in the Constitutional Court,” says Gutto.
The Constitutional Court might end up hearing arguments on the interpretation of Section 179(5)(d) of the Constitution, which deals with the NDPP process to review a decision to prosecute.
The highest court of the country may also have to decide whether Mbeki had failed to fulfil his Constitutional obligation as president to respect and protect the independence of the NPA.
Either way, the Constitutional Court will not have the luxury of taking its time to deal with the case, says Gutto.
”The Constitutional Court ought to decide the matter very expeditiously… we are dealing here with somebody who is going to stand for the presidency in the forthcoming elections.
”A delay will simply be seen as allowing the country to go into elections with a lot of clouds hanging over the candidacy of Jacob Zuma,” says Gutto. — Sapa