'Improper not to prosecute JZ'

The chief prosecutor in President Jacob Zuma’s corruption case has criticised three consecutive prosecutions bosses for the fact that Zuma’s case never saw the light of day.

State advocate Billy Downer delivered a hard-hitting address at an international law conference in Cape Town last week, saying he and his Scorpions team were overruled by advocates Bulelani Ngcuka, Vusi Pikoli and Mokotedi Mpshe in turn during the Zuma investigation when each was national director of public prosecutions (NDPP).

Downer was also the lead prosecutor in the Schabir Shaik case.

Speaking at the Middle Temple South Africa conference, Downer said the controversy surrounding Zuma’s prosecution started when Ngcuka decided in 2003 not to prosecute the then deputy president with Shaik, his former financial adviser.

“Mr Ngcuka announced publicly that the investigating and prosecuting team, of which I was a part, had recommended that Mr Zuma should be prosecuted.

The national director of public prosecutions [Ngcuka] therefore took an original decision not to prosecute, against the advice of the two line prosecutors and, indeed, the other members of the investigating team.”

At that stage, Downer was working with advocate Gerda Ferreira, who subsequently resigned from the National Prosecuting Authority (NPA).

Downer said Ngcuka’s decision not to prosecute Zuma was constitutionally significant for three reasons:

  • It was a decision taken by the
    national head of the NPA, not a deputy director of public prosecutions responsible for a specific province. “It is debatable whether the framers of the Constitution ever intended the NDPP to have any original powers of decision at all”;
  • Ngcuka disagreed with Downer and Ferreira’s decision that Zuma should be prosecuted with Shaik: “With hindsight, Mr Ngcuka might wish that he had followed our advice”; and
  • Ngcuka’s motives were criticised by the political and legal community for years — this fuelled further debate about the re-charging of Zuma.
  • Pikoli, who succeeded Ngcuka, decided to charge Zuma in mid-2005 after Shaik was convicted of fraud and corruption.

    According to Downer, the prosecution of Zuma was a “legal inevitability” after Judge Hilary Squires’s judgment in the Shaik matter.

    “One could not possibly, in the face of that judgment, do nothing. It was clear as daylight that a prosecution had to follow. It does not mean that Mr Zuma is guilty, but the judgment just made it clear that there was such a strong case against him, it would be quite improper not to prosecute.”

    The Scorpions then raided Zuma and his associates’ properties and obtained more evidence.

    Pikoli decided — against the advice of Downer and his team — that the legal challenges to the raids should first be dealt with before Zuma was pros- ecuted.

    “Yet again, the NDPP chose not to follow our advice, this time to delay Mr Zuma’s prosecution until we had gathered all the new evidence that we had set about obtaining.”

    This led Judge Herbert Msimang to throw out the case in the Pietermaritzburg High Court when the state applied for a postponement.

    After the legal challenges to the raids on Zuma’s properties were finally dealt with by the Supreme Court of Appeal (in the state’s favour), Downer and his team finalised the draft indictment against Zuma.

    It was early December 2007, after Pikoli had been suspended by former president Thabo Mbeki in September that year.

    According to Downer, he and his team recommended to Mpshe, who was then the acting NDPP, that they were ready to prosecute.

    This was shortly before the ANC’s national conference in Polokwane where Zuma defeated Mbeki.

    “Our plea was, as usual, to leave politics out of it and make the correct prosecution decision. So, once again, the decision to delay the announce- ment of the decision until after the Polokwane conference was one taken against the advice of the line prosecutors,” said Downer.

    When Mpshe let Zuma off the hook in April 2009, he quoted from transcripts of conversations between Ngcuka and former Scorpions boss Leonard McCarthy, discussing the timing of Zuma’s case.

    According to Downer, four questions remain: Is Zuma guilty?

    Did the National Intelligence Agency act irregularly when it released confidential recordings to Zuma?

    Did someone in Zuma’s team illegally receive the recordings from the NIA?

    And, what are the prospects of prosecuting someone in high office in future?

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