African National Congress (ANC) president Jacob Zuma should have complained a lot sooner than he did if he believed the national director of public prosecutions (NDPP) had violated his constitutional rights.
This is according to the heads of argument filed by the state in the Pietermaritzburg High Court on Wednesday afternoon.
Zuma claims that the National Prosecuting Authority (NPA) was obliged in terms of the Constitution and the National Prosecuting Authority Act of 1998 to give him the opportunity to make representations before it decided to prosecute him in 2005 and 2007.
He also claims that the decision to prosecute him was a reversal of a decision taken by former NDPP Bulelani Ngcuka, who announced in August 2003 that he had a prima facie case against Zuma, but would not be prosecuting him.
The state asked why Zuma was only in 2008 questioning the decision of suspended prosecutions boss Vusi Pikoli, who opted to prosecute Zuma following the conviction of Durban businessman Schabir Shaik in August 2005.
”We submit at the outset that the court should decline to review the Pikoli decision because it has become moot and the application for its review is out of time.”
It also emerged that Zuma’s lawyer, Michael Hulley, had written to the NPA on October 11 2007, requesting ”an opportunity to be heard”. The state contends that Hulley had been told that he would not be able to make representations.
”When the acting NDPP [Mokotedi Mpshe] declined their request in his reply of October 12 2007, they did not protest as they would have done if they had any real expectation of a hearing.”
Zuma was charged on December 28 2007.
He faces a charge of racketeering, four charges of corruption, a charge of money laundering and 12 charges of fraud.
Judge Chris Nicholson will preside over Zuma’s application to have the decision to prosecute him declared unlawful.
The application will be heard in the Pietermaritzburg High Court on Monday and Tuesday.
Constitutional Court judgement
Meanwhile, the long-awaited Constitutional Court judgement on searches relating to the corruption investigation against Zuma and arms company Thint will be handed down on Thursday, the court said.
In March, Zuma and Thint asked the court to rule that the warrants that authorised the searches of Zuma’s offices and home, as well as the offices of his lawyers and Thint, were invalid, and that a letter of request to Mauritian authorities for original documents the state required should not have been issued.
This followed an unsuccessful approach to the Supreme Court of Appeal, so they approached the Constitutional Court
They argued that the warrants were too broad and were an invasion of privacy, and allowing the letter of request threatened their right to a fair trial.
While working on the judgement, the court in May complained to the Judicial Service Commission that Cape Judge President John Hlophe had allegedly approached two judges to try to influence the outcome of the case.
Hlophe has in turn accused the Constitutional Court of not following procedure on the matter and has also reportedly approached the Johannesburg High Court asking for a declaratory order that the Constitutional Court violated his rights. — Sapa