The Pietermaritzburg High Court started hearing argument on Monday on why the corruption case against ruling party leader Jacob Zuma should be dropped.
His lawyer, Kemp J Kemp, presented arguments around his interpretation of section 179(5)(d) of the Constitution.
Zuma is claiming that the National Director of Public Prosecutions (NDPP) was obliged in terms of that section to give him the opportunity to make representations before it decided to prosecute him in 2005 and 2007.
The softly-spoken Kemp told the court that if the section did not apply to the NDPP, it would allow the state to change decisions constantly without representations being made.
Kemp, who was asked by Judge Chris Nicholson to speak louder, said that if the writers of the Constitution had meant that section 179(5)(d) did not apply to the NDPP, they would have expressly included it in the Constitution.
Asked by Nicholson if there was any ambiguity in the relevant section, Kemp said: ”I don’t see the ambiguity and I don’t see the uncertainty.”
Nicholson questioned whether it was ever contemplated that the NDPP itself would take decisions to prosecute when the section of the Constitution was written.
Kemp is arguing that the state did not adhere to the conditions and twice decided to prosecute Zuma — in June 2005 and December 2007 — without offering him the opportunity to defend himself.
Zuma is claiming that the decision to prosecute him was a reversal of a decision taken by the former NDPP, Bulelani Ngcuka. He announced in August 2003 that the National Prosecuting Authority would not prosecute Zuma, because it did not believe that it had a ”winnable case”.
But after Zuma’s financial advisor, Schabir Shaik, was found guilty of corruption in 2005, the state decided to charge Zuma after all.
The state will argue that it did not need to offer Zuma the chance to make representations, because the conditions only apply when it is the NDPP reviewing a decision by someone more junior than himself.
The state believes that the conditions do not apply when it is the chief prosecutor reviewing his own decision.
However, the state contends that when Judge Herbert Msimang struck the case against Zuma from the roll in September 2006, that meant there could be no review of Ngcuka’s decision to not prosecute.
Zuma faces a charge of racketeering, four charges of corruption, a charge of money laundering and 12 charges of fraud.
The chanting of Zuma supporters could be heard within the court room, which was filled with the top leadership of the African National Congress, the South African Communist Party and the Congress of South African Trade Unions.
The case is likely to decide whether Zuma will succeed Thabo Mbeki as South African president next year.
Late on Sunday, crowds gathered across the road from the court, chanting ”Who told you that Zuma is guilty?” Some wore hats bearing the phrase ”Jacob Zuma for South Africa President” and others carried placards that said ”All shall be equal before the law”.
Conspiracy
Zuma defeated Mbeki for the ANC leadership in December, amid infighting sparked by Mbeki’s firing of Zuma as national deputy president in 2005, after he was implicated in the Shaik corruption case.
His supporters say the case is a conspiracy by Mbeki loyalists aimed at derailing Zuma’s political ambitions.
”Throughout the investigation and prosecution of this case the ANC president has had his rights repeatedly violated by institutions of state,” the ANC said in a statement.
The ANC Youth League called on Mbeki on Sunday to step down to allow for an early election.
A protracted trial could mean Zuma’s case would overlap with general elections in 2009, increasing the country’s political instability.
His strong links to trade unions and the left have already worried investors, who prefer Mbeki’s pro-business tilt.
While the populist Zuma has publicly said he is ready to prove his innocence and go on trial, he has fought hard to squash the case before it reaches a courtroom.
He was dealt a blow on Thursday when the Constitutional Court upheld a ruling by the Supreme Court of Appeals that raids on Zuma and his lawyer were valid and that thousands of documents seized could be used against him in a trial.
The Pietermaritzburg hearing is expected to finish on Tuesday. If Zuma loses the appeal, he is likely to ask the Supreme Court to have the corruption case dismissed. – Sapa, Reuters