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17 Apr 2009 08:50
National Director of Public Prosecutions Mokotedi Mpshe could have made no other decision than to drop charges against ANC president Jacob Zuma, former judge Willem Heath said on Thursday.
“If he proceeded [with the prosecution] the judge would have ruled that it was an illegality and it would have come to an end,” Heath said.
Heath was chairing an academic debate in Pretoria on the withdrawal of corruption charges against Zuma on April 6.
The decision, Mpshe said at the time, was because there had been an abuse of process and manipulation by then-head of the Scorpions Leonard McCarthy and former head of the National Prosecuting Authority, Bulelani Ngcuka.
“Mpshe said there was conniving behind the scenes, to avoid Zuma becoming the president of the country and therefore they [Ngcuka and McCarthy] decided when to issue an indictment, an indictment to cast a shadow of a doubt,” said Heath.
The timing around when to indict Zuma was provided to the NPA in the form of transcripts of telephone conversations between the then-prosecuting bosses.
“Mpshe disclosed that there was ulterior purpose [behind the decision to indict Zuma].
“If it’s done with ulterior purpose, it’s an illegality, not a technicality. It’s not just timing.
When a matter is so tainted, the court is bound to overrule the prosecuting authority.”
Heath said it was frightening that practising legal practitioners had been so quiet about the outcry over the NPA’s decision.
“The silence and the apathy of practitioners in South Africa after the announcement by advocate Mpshe is deafening.”
He said it was common practice in South Africa and abroad for prosecutors to change their minds about continuing the process even after the case was already under way in court.
“No court of law can say to a prosecutor he made the wrong decision to withdraw [charges].
Heath said Supreme Court of Appeal acting deputy judge president Louis Harms may not have upheld the NDPP’s appeal to prosecute Zuma had he known about behind-the-scenes manipulation.
“I’m pretty sure he would have arrived at a different decision,” said Heath.
Asked if he felt the NPA should be investigating former president Thabo Mbeki’s alleged involvement in the abuse of process, Heath said that by Mpshe’s own declaration, when he made the announcement of the dropping of charges, an investigation was ongoing.
“This is definitely not the end. Maybe they will investigate Mr Mbeki, maybe they will approach him.”
In the transcripts, mention was made several times of a man referred to as the “big boss” and the “man at Shell House”. Some have said these could be references to Mbeki, which could implicate him in the saga.
President of the South African Institute of Race Relations, Sipho Seepe, said he felt the media had created so much controversy around Zuma, and this was the reason there was such an outcry.
He said normally there was crime and a suspect had to be found.
“Here you had a suspect and you had to find a crime,” he said to much laughter.
He said challenging the judiciary because the public did not like its decisions was hypocrisy.
Citing Democratic Alliance leader Helen Zille as an example, he said it was just because she did not like the decision that she said the Constitution was under threat.
“That’s hypocrisy, we always challenge the Constitution when it suits us,” said Seepe.
NPA spokesperson Tlali Tlali was scheduled to take part in the debate. However around a hour before the start, the Human Sciences Research Council was notified he would not be attending.
The reason conveyed to the room was that since the DA had laid charges against Zuma after the NPA withdrew its own charges against Zuma, the matter was sub judice. - Sapa
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