Jacob Zuma must get his head in the game

From left, Willie Hofmeyr, Willem Heath, Menzi Simelane and Jeff Radebe after Simelane was appointed NPA chief. (Samantha Reinders)

From left, Willie Hofmeyr, Willem Heath, Menzi Simelane and Jeff Radebe after Simelane was appointed NPA chief. (Samantha Reinders)

Zuma has until Saturday to honour a commitment to the Constitutional Court to appoint a permanent national director of public prosecutions for the National Prosecuting Authority (NPA), which he made under threat of an order from the court compelling him to do so.

The NPA has been without a permanent head for almost five years, barring a short stint in office by Menzi Simelane, whom the courts found was unfit to hold the position.

The Council for the Advancement of the South African Constitution (Casac) was widely expected to succeed in convincing the Constitutional Court that such a state of affairs was untenable and to be granted an order forcing Zuma to make an appointment. But, in an apparent bid to stave off such a judgment, Zuma promised in July to make an appointment by the end of August - barring "unforeseen circumstances".

Zuma's spokesperson, Mac Maharaj, could not be reached for comment on Thursday, but earlier in the week had said he did not know when Zuma would make an appointment, although the president was aware that the clock was ticking.

Zuma succeeded with a similar tactic when taken to court on the lack of an investigation into the arms deal, announcing the current Seriti commission of inquiry on the eve of a case he was also expected to lose.

While the commission is under way, legal action is in effective precluded. Experts believe the courts would take a dim view of challenges of all but the most gross irregularities in its hearings on the grounds that it should be allowed to conclude its work before this is reviewed.

However, the appointment of the director of public prosecutions offers no such answer. Should Zuma fail to meet his own deadline, Casac has warned, it is likely to return to court to compel an appointment.

Should Zuma again appoint a head prosecutor unfit for the role, the Democratic Alliance has warned, it will again turn to the courts to challenge the appointment. And should a fit head be appointed in time, Zuma faces the possibility that the new director could reinstate the charges of alleged corruption against him.

That prosecution was dropped mainly on the basis of the spy tapes that Zuma will again seek to suppress in a court hearing on September 6. Aside from arguing against an earlier cost award made against him, lawyers for Zuma will tell the North Gauteng High Court in Pretoria that it erred in 17 different respects when it found in August that the tapes and other documents showing how the NPA decided not to prosecute Zuma must be handed to the DA. Their arguments concern the claim of confidentiality that the court previously said was unfounded and also deal with the technical grounds that were been ruled on.

Pierre de Vos, a constitutional law expert, said: "The spy tapes, and the specific instruction that they should be handed over, that has been ventilated in the courts over and over, and I would be surprised if the court grants leave to appeal on that."

But that does not mean that the high court may not grant him leave to appeal on whether the NPA should hand over other documents - and it does not preclude Zuma from turning to the Supreme Court of Appeal in yet another bid to keep the tapes under wraps, De Vos said.

Phillip de Wet

Phillip de Wet

Phillip de Wet writes about politics, society, economics, and the areas where these collide. He has never been anything other than a journalist, though he has been involved in starting new newspapers, magazines and websites, a suspiciously large percentage of which are no longer in business. PGP fingerprint: CF74 7B0F F037 ACB9 779C 902B 793C 8781 4548 D165 Read more from Phillip de Wet

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