The state has decided to reinstate criminal charges against African National Congress (ANC) deputy president Jacob Zuma who will likely be back in the dock before the end of 2007, events in Bloemfontein this week suggest.
National Director of Public Prosecutions Vusi Pikoli still has to announce his decision, but submissions to the Supreme Court of Appeal this week suggest that Zuma will be recharged immediately after the appeal is Âconcluded.
Sources close to the investigation have told the Mail & Guardian the prosecution team intends lodging fresh charges as soon as the Supreme Court of Appeal (SCA) has announced its decision on whether various documents seized by the National Prosecuting Authority (NPA) in controversial raids on Zuma’s Âlawyers and arms firm Thint can be used in court.
The NPA appealed against last year’s Âruling by the Durban High Court that declared the August 2005 raids on the properties of Zuma and his attorney, Michael Hulley, unlawful.
Zuma’s counsel, Kemp J Kemp, took a verbal battering this week from appeal judges as he attempted to fend off the appeal.
Zuma cut a desolate figure as he watched Kemp struggle to Âconvince a full bench of the SCA that the NPA had failed to show a need for the searches. Kemp argued the search warrants were vague and insufficient steps were taken to guard against the risk that Âprivileged material would be gathered in the raids.
A ruling is expected within the next two months.
That means the possibility of Zuma attending the ANC’s national conference at Polokwane in December as the accused in a criminal case is stronger now than ever. The political implications could be substantial.
Cosatu has asked repeatedly for the charges against Zuma to be dropped and the federation’s KwaZulu-Natal general secretary, Zet Luzipho, warned Âearlier this year there would be “blood in the Âcourtroom” if the corruption and fraud charges against Zuma were reinstated.
The ANC constitution, Âhowever, does not prevent accused people from being nominated for official positions. Zuma has told journalists repeatedly he will not back down in the face of criminal charges against him.
The NPA’s counsel, Wim Trengove, told the SCA that Âfurther searches had been needed to Âprosecute Zuma. The ANC deputy president’s former financial adviser and fraud convict, Schabir Shaik, admitted in his trial that his payments to Zuma were ongoing, but refused to provide proof, Trengrove said.
The state had good reason to Âpursue this, he argued. “It doesn’t follow that because Shaik was found guilty, Zuma must also be.
“To prove the offence the state must show a corrupt intent.”
Trengove told the court the raids had been necessary “because there is always the risk that an accused won’t be open, honest and frank”.
He emphasised that the only documents taken from Hulley’s office were two boxes of Zuma’s financial records, which were handed to Hulley by Shaik’s Âattorney.
Kemp suggested the state had an ulterior motive to obtain information on Zuma’s planned defence for his trial. Search warrants had not shown the relevance of the two boxes of documents to the investigation, he argued.
These claims were, however, sharply questioned by judges Robert Nugent and Ian Farlam who asked Kemp how he could claim privilege for documents that neither he nor Zuma and Hulley had seen.
When Kemp argued that less obtrusive measures could have been used by the state to obtain the two boxes, Nugent asked: “Must a suspect now decide how he should be prosecuted?”
Legal observers remarked that the NPA had left Bloemfontein much stronger than before, with the albatross of last year’s unsuccessful attempt to prosecute Zuma in Pietermaritzburg something of the past.
If the state’s appeal against the unlawful raids is upheld, it is understood Zuma and Hulley will petition the Constitutional Court against the SCA’s verdict. But this will not prevent the state from using the seized documents in finalising its forensic report.
Unless the Constitutional Court grants an interim order preventing the NPA from using the seized documents, the state will prepare its case against Zuma as normal. Zuma has indicated that he will bring an application to declare his trial unfair as soon as he is charged again.
Defeat in the SCA will be a huge blow for such a strategy, but he could argue still that his constitutional right to a speedy trial was infringed by the 2003 decision not to prosecute him. This decision was overturned after the Shaik conviction in 2005.
People close to the case believe that even if Zuma is charged before the end of the year, all his manoeuvring will ensure any criminal trial will commence only in 2009.
The battle of Bloem
Bloemfontein is not in KwaZulu-Natal. That much was clear not only in the lacklustre support for ANC deputy president Jacob Zuma outside the Supreme Court of Appeal (SCA), but also in the freezing weather of the past week, writes Adriaan Basson.
Thermometers dropped below zero overnight, and the water in the SCA’s birdbath froze. Perhaps the chill was also responsible for jamming the door of Zuma’s VIP Jeep on Tuesday morning.
It was not the start that his team will have choreographed, and as it turned out, the missteps inside court were more substantial.
The whole thing began impressively enough. The Zuma cavalcade could be heard from afar, rolling down Nelson Mandela Drive, and turning into President Brand Street.
It swooped into the SCA premises and the more than 10 bodyguards stepped out, appropriately dressed in black overcoats.
They came prepared for the Battle of Bloem.
And there proceedings stalled. Zuma was stuck in the car.
A bodyguard pulled at the door handle, and pulled it again. He asked Zuma to do the same, then shouted something to his colleague inside the Jeep, but their efforts were to no avail.
Eventually, after a tug-of-war that must have lasted 30 seconds — but felt much longer to onlookers — the door flew open. Not very presidential.
Out stepped Zuma, visibly disturbed. Through the X-ray machines, down the alley and into room 13, the media room. It had been set aside for the man, who is suing numerous media organisations, and his lawyers to consult in.
Inside court he sat next to his attorney, Michael Hulley, under the watchful eyes of the men in black, of course.
And the order to the media, conveyed by registrar Henry Snyman, was crisp: there was to be no “zooming in on Mr Zuma” in the SCA this week.
The Zuma Show came to Bloem, but it was just not the same. No crowds. No uMshini Wami. Not even Ranjeni Munusamy was there.
The other appeals
Julie Mahomed
The state conceded that the warrant to search the office of Zuma’s Johannesburg attorney was invalid. Counsel Wim Trengove only argued for the seized documents, or copies thereof, to be preserved with the registrar of the high court.
He advanced two reasons: first, that there was a real risk of evidence being lost or destroyed and, second, that the state would have no record of what was seized for purposes of a defence against a possible application for a mistrial at a later stage.
This, Trengove argued, would make the state “vulnerable”.
Neil Tuchten SC opposed the application on behalf of Mahomed.
Thint
French arms company Thint (previously Thales) appealed a decision by the Pretoria High Court that turned down its application to set aside the search warrants.
Peter Hodes SC argued for Thint that the National Prosecuting Authority withheld “material facts” from Transvaal Judge President Bernard Ngoepe when it applied for these warrants. Thint had always been of assistance to the state and there was no need for a search and seizure operation, he said.
Trengove responded on behalf of the state, arguing that Ngoepe was properly briefed about the company and the fact that privileged material might have been seized. According to him, the “essence of a warrant” was to allow for a “unilateral search”.