The National Prosecuting Authority’s victory in its fight for the right to use evidence gathered in raids against Jacob Zuma and his associates has cleared the way for Zuma to be recharged before the African National Congress’s December conference.
But the case is unlikely to be heard in the near future. On Thursday Zuma’s lawyers indicated that they are ready to take the decision of the Supreme Court of Appeal (SCA) to the Constitutional Court.
Given the division between the appeal court judges and the constitutional issues involved in search and seizure operations, which were central to the case, the court is likely to grant leave to appeal.
A well-placed source said acting National Prosecuting Authority (NPA) boss Mokotedi Mpshe is unlikely to prosecute Zuma while a Constitutional Court case is pending.
In addition, Zuma has indicated that he will bring an application to declare his trial unfair as soon as he is charged again. Such an application will have to be dealt with before any trial proceeds.
The ANC deputy president has already approached the NPA with a request for a review of his case, similar to the one being carried out regarding the decision to charge police National Commissioner Jackie Selebi.
In a three-two split decision on Thursday the SCA endorsed as legal the raids on Zuma’s homes and former offices in the Union Buildings, on the Durban office of his attorney, Michael Hulley, and on the local offices of French arms company Thint.
The searches were executed simultaneously at premises throughout the country by 250 members of Scorpions and 93Â 000 documents were seized.
Initially the raids on Zuma were ruled unlawful by the Durban High Court, which meant crucial evidence against him was inadmissible.
Particularly important were financial records held by Zuma’s former “financial adviser”, Schabir Shaik, which had been transferred to Hulley’s office shortly before the raids.
The NPA appealed against the High Court judgement on the Zuma and Hulley raids.
The raids on Thint had been upheld by the Pretoria High Court, but Thint also went to the appeal court and the appeals were heard together.
Now the NPA has crossed what it once described as “the final hurdle” on the road to prosecuting the ANC deputy-president.
It is understood that the prosecution team is ready to brief Mpshe within days, enabling him to bring fresh charges.
Sources close to the investigation said Mpshe had been given a preliminary briefing after taking over as acting national director following the suspension of Vusi Pikoli.
It is understood he indicated his satisfaction with the prosecutors’ recommendations and that little now stands in the way of putting Zuma in the dock.
NPA spokesperson Tlali Tlali said after the judgement: “This is one of the major hurdles that we have overcome thus far. That means we are on course and all processes will unfold. As soon as we are ready, we’ll pronounce on a further course of action.”
He declined to give a time frame.
Any decision to charge Zuma before the ANC’s national conference is likely to heighten the political temperature surrounding the succession battle, political analyst Adam Habib predicted this week.
“We can expect more public acrimony in the coming weeks,” he warned.
Habib also believes the judgement will dent Zuma’s bid for the ANC presidency and bolster support for the idea of a compromise candidate.
Zuma’s lawyer, Hulley, also sounded a warning: “Whether these rulings embolden the National Prosecuting Authority to again indict Mr Zuma on any charges will be observed with keen interest.
“Mr Zuma has been under investigation for a period in excess of seven years. The view has long been held that the investigation has been guided by improper political motives.
“The timing and nature of the charges, should these eventuate, will be reflective as to whether such motives still exist.”
Zuma was charged in 2005, but the case was struck off the roll last year when the state indicated it was not yet ready to proceed.
The ANC has accepted the court’s decision. “As we have consistently maintained, the law must be allowed to take its course,” the party said in a statement.
Cosatu said it still believed “we are dealing with a concerted politically inspired campaign to destroy the career of the deputy president.
“Accordingly … our support for his candidacy as ANC president … is unshaken and stronger than ever.”
Appeal judges Robert Nugent, Nathan Ponnan and Dunstan Mlambo held that the search warrants that authorised the raids expressed with enough clarity and certainty “the scope of the authority that they confer” and that the statute under which they were issued required no more.
In their minority judgement SCA judges Ian Farlam and Tom Cloete agreed with Judge Noel Hurt of the Durban High Court that the search warrants used were invalid because they did not intelligibly convey the ambit of the search.
In his reaction to the judgement Hulley said: “Both the rulings handed down have strong constitutional law imperatives which impact fundamentally on Mr Zuma’s rights and, in turn, on the rights of all South Africans.
“We note the dissenting judgement relating to the constitutionality of the search and seizure which underscores, with respect, the credence of our approach. Accordingly, an application will be made for leave to appeal against the judgements to the Constitutional Court.”
However, a constitutional appeal will not prevent the state from using the seized documents in its forensic inquiry into the flow of money from Shaik and other sources to Zuma — nor from bringing new charges against the latter.
The forensic report is effectively complete and although it was not tabled, a draft was available at Zuma’s court appearance in the Pietermaritzburg High Court last year.
The SCA judgement also confirms the right of the NPA to apply to Mauritius for access to the originals of documents seized on the island in 2001 during the Shaik investigation.
The Shaik trial made use of copies, but for the Zuma case the NPA obtained a court order requesting Mauritian assistance in obtaining the originals. Both Zuma and Thint appealed against this order.
The judgement also opens the way for the prosecutors to apply for access to Zuma’s official diary for the year 2000. In that year, on March 10 or 11, he is alleged to have met Schabir Shaik and French arms dealer Alain Thetard to request
a bribe.
The diary was discovered during the Scorpions raid on Zuma’s office at the Union Buildings, but prosecutors were denied access to it by the presidency, which cited concerns about state secrecy.
It was sealed and kept in the presidency’s possession pending the determination of the prosecution’s right to access this material.
On Thursday the ANC Youth League said the SCA ruling had “no legal or political bearing on our support for Jacob Zuma to succeed Thabo Mbeki” as ANC president.
“We will continue to believe in Zuma’s innocence as enshrined, guaranteed and protected under the Bill of Rights,” said a league statement.
At a media briefing in Johannesburg league president Fikile Mbalula took a swipe at the Scorpions, saying the unit was being used as a “political machine to eliminate anyone who does not abide by the political agenda”.