/ 23 May 2016

‘Spy tapes’ challenge may undermine NPA’s authority

The NPA under Shaun Abrahams is essentially asking the appeal court to overrule its own decision
The NPA under Shaun Abrahams is essentially asking the appeal court to overrule its own decision

Many analysts are perplexed by the grounds put forward by the national director of public prosecution, Shaun Abrahams, to appeal the Pretoria high court’s ruling on the so-called “spy tapes”.

Abrahams announced on Monday that the National Prosecuting Authority (NPA) will appeal the court’s decision to set aside the withdrawal of criminal charges against President Jacob Zuma, because “it is the NPA head and not the courts who has the right decide whether to charge or not”.

A constitutional law expert, Professor Pierre de Vos, said his argument is fundamentally flawed and the appeal will not go very far.

“The Supreme Court of Appeals has already ruled on what Abrahams is putting forward as grounds for the appeal, and it’s important to note that the high court is not telling the NPA who to charge or not charge,” De Vos said.

The NPA is essentially asking the appeal court to overrule its own decision, which is unusual, De Vos said.

“It happens every 15 years or so, and there’s no merit for that to happen with regards to this case.”

Political analyst Somadoda Fikeni said he doubts there was any political directive for Abrahams to take the decision to appeal.

“The NPA was put in an awkward position and, like anyone else dealing with a matter that impacts the high office in this country, they [the NPA] had to take a cautious approach.”

Fikeni said, although the NPA’s case might be weak, “they might want to exhaust all available avenues before they could think of reinstating the charges against President Zuma, if it leads to that”, Fikeni said.

A constitutional law expert, Shadrack Gutto, also believes the NPA has not done enough to win its case, but the issue is likely to be around for a very long time. “We going to see appeal after appeal.”

Gutto warned that, if the case drags on, it will have a negative affect on the “already tainted” image of the NPA, and that it will be seen as an institution that is unable to independently provide prosecuting services.

He added that, even if the NPA is within its rights to appeal, this doesn’t suggest that the prosecuting authority is doing its job without “fear, favour or prejudice”.

Earlier this year, Zuma was found by the Constitutional Court to have failed to uphold, respect and protect the Constitution as the supreme law when he ignored the remedial actions recommended by the public protector, Thuli Mandosela, regarding security upgrades at his Nkandla homestead.

Fikeni said the court cases and the political infighting in the ANC under Zuma’s leadership will overshadow any significant achievements he has made and will characterise his legacy.

“The prospect of a trial, friends cutting ties and losing the backing of the state – though not saying it publicly, these are some of the things Zuma is worried about,” said Fikeni, adding that it was only natural that the president would put people he trusts into positions of power, as the court cases and other issues are continuing to weaken him politically and are putting him in danger of a rebellion from ANC branches and other party leaders.