The decision about whether to re-charge Jacob Zuma may be taken only after the African National Congress’s watershed leadership conference in December, sources close to the National Prosecuting Authority (NPA) have told the Mail & Guardian.
Legal and political considerations mean that National Director of Public Prosecutions Vusi Pikoli may postpone his decision until after the first round of the succession battle is settled.
On the legal front, the NPA has already indicated publicly that it will not take a decision on the Zuma prosecution until it knows the outcome of next week’s Supreme Court of Appeal hearings to rule on the legality of the August 2005 raids on Zuma.
The NPA, represented by a legal team including Wim Trengove and Richard Salmon, will contest judge Noel Hurt’s 2006 ruling that it failed to prove the necessity for the searches, that the search warrants were ‘unduly vague†and that insufficient steps were taken to guard against the risk of ‘intrusion upon privileged materialâ€.
Crucial to these arguments are two boxes of financial records that were handed over to Zuma’s lawyer, Michael Hulley, by Schabir Shaik’s legal representative after Shaik was convicted of corruption and fraud.
The Scorpions removed these boxes during the searches at Hulley’s Durban office and want to use the information in their forensic report for the Zuma trial — if they decide to charge him again.
Hurt ruled that the Scorpions’ action violated attorney-client privilege, but the NPA will now try to convince the Supreme Court of Appeal (SCA) that the issue of privilege never arose during the searches.
Zuma’s legal team, led by advocate Kemp J Kemp, vehemently opposes the NPA’s argument.
According to the Zuma team’s heads of argument the NPA was intent on getting details of Zuma’s possible defence against the corruption charges. This, Kemp will argue, was an ‘unlawful abuse of processâ€, and constituted a ‘reckless disregard of Zuma’s rightsâ€.
Zuma’s ‘Stalingrad†policy of contesting legal ground street by street means that if the SCA does uphold the legality of the search and seizure operations, he will certainly take the case to the Constitutional Court, though this will not formally stop the NPA from using the seized documents.
If the SCA rules against the NPA on a core group of documents — those relating directly to Zuma’s financial affairs — or sets a high bar for the conduct of searches, the prosecuting authority is also likely to go the constitutional route.
Either way, final clarity on the status of items seized during that controversial raid is unlikely before next year.
The NPA is also awaiting the outcome of Schabir Shaik’s Constitutional Court appeal, while the process of securing the originals of documents seized in 2001 in Mauritius is far from complete.
Zuma’s SCA challenge to a high court order allowing the NPA to approach the Mauritian authorities for the documents is due to be heard on September 21, but after that the prosecution authorities will still face the hurdle of a similar application in the Mauritius high court.
The Shaik trial accepted copies of the documents, which, crucially, include the diary of French arms company director Alain Thetard. The diary records plans for a meeting between himself, Shaik and Zuma.
It was at this meeting that the alleged proposal to pay Zuma a bribe of R500 000 a year was supposedly confirmed.
On the political front, postponing the decision until after the December conference has several advantages.
Importantly, the legal limbo Zuma is in now has significantly reduced his ability to perpetuate the aura of persecution he so successfully exploited during 2006.
The NPA also avoids the inevitable accusations of ‘politicking†that would flow from charging Zuma shortly before the ANC’s election contest.
If Zuma were elected ANC president before the decision whether to charge him is made, the NPA has the opportunity to consider carefully and deal with the legal and constitutional issues such an event might raise.
Postponing the decision may also make it possible for President Thabo Mbeki to seek an accommodation with Zuma before the prosecution die is cast.
Two sources close to Zuma have indicated that the ANC deputy president is still open to a ‘deal†that would see neither Zuma nor Mbeki stand.
Finally, if Zuma loses the contest in December, the NPA would be free to proceed with charges against him without being accused of engineering his defeat.