The National Prosecuting Authority’s statement explaining its decision to drop charges against ANC president Jacob Zuma closely resembles a judgement handed down in Hong Kong six years ago, according to an article on politicsweb.co.za.
A ruling handed down on December 13 2002 in Hong Kong by Justice Conrad Seagroatt cites British Commonwealth judgements that acting prosecutions boss Mokotedi Mpshe refers to in his statement, noted the website’s editor James Myburgh in his article, dated April 14.
”Even more strikingly the phrases quoted are almost all the same as well — give or take some self-serving summarising, truncation and rewriting by the NPA,” Myburgh pointed out, comparing more than a dozen sections from Mpshe’s statement and the judgement.
The Hong Kong judgement was overturned on appeal.
Myburgh questioned whether the rulings Mpshe leaned on were ”really relevant” to his decision to drop charges against Zuma.
”This is not just because South Africa has its own common law and Constitution, but because these judgements all discuss the considerations that the courts should weigh up when asked to stay proceedings.
”One would not know this from Mpshe’s decision as most references to ‘the court’ have been excised and replaced with phrases such as the ‘criminal justice process’,” said Myburgh.
Seagroatt’s concluding remarks also seemed to presage by some six-and-a-half years, almost to the word, the following comment from Mpshe: ”It is against this broad principle of abuse of process that the conduct of Mr McCarthy must be seen and tested. The question for close consideration is encapsulated in expressions such as ‘so gravely wrong’, ‘gross neglect of the elementary principles of fairness’, ‘so unfair and wrong’, ‘misusing or manipulating the process of the court.’ If the conduct can be so categorised, it would be unconscionable for the trial to continue.”
According to Seagroatt: ”It is against this evolved statement of broad principle that the prosecution’s failures and shortcomings with regard to disclosure must be seen and tested. Those for close consideration are best summed up by such expressions as ‘so gravely wrong’, ‘gross neglect of the elementary principles of fairness’, ‘so unfair and wrong’, ‘misusing or manipulating the process of the court’. If those failures can properly be so categorised, are they such as to make it unconscionable that a re-trial should go forward?”
Responding to the article, National Prosecuting Authority spokesman Tali Tali told the Star: ”We are recognising that what we said was based on that judgement and we are in no way attempting to pass that ruling off as our own.
”We regret the oversight, but it in no way detracts from the decision that advocate Mpshe reached.”
The High Court in Durban endorsed on April 7 the NPA’s decision to drop the charges.
Judge president Vuka Tshabalala said when charges are withdrawn they could be reinstated again, however, he stressed that it was unlikely.
The formality followed the announcement by Mpshe on April 6 that the 16 charges would be dropped due to the alleged abuse of process by the former head of the Directorate of Special Operations (DSO), Leonard McCarthy.
Mpshe was quick to point out that dropping the corruption charges did not amount to Zuma’s acquittal.
His decision was not based on the actual merits of the case.
”It does not amount to an acquittal … Mr McCarthy’s conduct offends one’s sense of justice. It would be unfair as well as unjust to continue with the prosecution,” Mpshe said at a press briefing. – Sapa