/ 15 September 2017

Ten years on, will Zuma face music?

Supreme Court of Appeal extracts crippling concessions from Zuma and the NPA.
Supreme Court of Appeal extracts crippling concessions from Zuma and the NPA.


The battle over President Jacob Zuma’s corruption charges — heard by the Supreme Court of Appeal this week — has been such a long-running saga that, although the phrase “783 charges” is repeated endlessly, the essence of the case against Zuma has been obscured.

In among the hundreds of pages that make up the court record, a 2009 memo from the prosecution team sums it up: “The state alleges, in essence, an overriding and pervasive scheme of corruption that was designed to assist the entire Shaik/Nkobi empire in all its business of whatever nature.

“It was also designed to be of extraordinary duration and ultimately to keep Zuma, as the holder of the highest offices, on the Nkobi payroll indefinitely as a beneficiary of Nkobi’s success in whatever form, be it as a stipendary beneficiary or a nominee shareholder, or a shareholder.”

Replace “Shaik/Nkobi” with “Gupta/Oakbay” and, if the #Gupta Leaks allegations are true, the statement is eerily prophetic.

But never mind the Guptas. More than 10 years later, the Shaik/Nkobi case is yet to be tested. The trial never got underway and Zuma has not even pleaded to the charges. Instead, the courts have seen a multiplicity of other legal wrangles — mostly by Zuma’s legal team — that delayed the prosecution.

And then, in 2009, acting prosecutions head Mokotedi Mpshe discontinued the prosecution — based on the “spy tapes”.

The tapes, given to the National Prosecuting Authority (NPA) as part of Zuma’s “representations” as to why he should not be prosecuted, were recordings of telephone conversations, mostly between former Scorpions head Leonard McCarthy and the first national director of public prosecutions, Bulelani Ngcuka.

They revealed that McCarthy had consulted extensively with Ngcuka, a passionate Mbeki supporter, about when to indict Zuma — with a view, said Zuma, to bettering Mbeki’s chances of winning the ANC elective conference in Polokwane.

The saga has spanned two ANC elective conferences and looks set to span another.

The “spy tapes” court case — brought by the Democratic Alliance, challenging Mpshe’s decision — has itself been running for eight years. This is the third time the case has been at the appeal court. The first two times were about the protracted preliminary battle by the DA to get its hands on the tapes.

Through all the legal skirmishes — and still, again, at the centre of the current battle — was the claim by the president, and now the NPA, that the prosecution has been irredeemably poisoned by politics, a dirty battle by the anti-Zuma faction in the ANC to ruin his political prospects.

[Jacob Zuma’s counsel, Kemp J Kemp at the Supreme Court of Appeal, argues against the high court decision that dropping corruption charges was irrational. (Mujahid Safodien/AFP)]

When Mpshe announced that he was discontinuing the prosecution, he quoted from the tapes at length and said the abuse of the legal process was a “gross neglect of the elementary principles of fairness” and it would be “unconscionable” for a prosecution to continue.

Yet, Mpshe was also categorical that the case against Zuma was strong, that the prosecution team had not been tainted, and that the spy tape revelations did not have an impact on whether Zuma would receive a fair trial. His decision was based solely on the abuse of process doctrine.

The DA’s argument that Mpshe’s decision was irrational in law was successful in the high court. In an unusual turn for such a high-profile case, the judges also refused leave to appeal, forcing Zuma and the NPA to petition the appeal court.

In heads of argument to the appeal court, the NPA’s counsel, Hilton Epstein SC, said the kind of abuse that arose in this case “is among the most egregious imaginable”.

“What could be more institutionally damaging than an attempt — by manipulating the timing of service of the indictment — to swing an election in favour of a political aspirant seeking high office?”

But — as sometimes happens in the appeal court — the game-changer issue was not the allegations of political manipulation. Epstein’s first hurdle — which Justice Mahomed Navsa called a “real mountain” — was that the NPA had made contradictory statements in different court cases about who had taken the decision to indict Zuma — McCarthy or Mpshe.

This was important because Mpshe could not — in terms of his review powers under the Constitution — review his own decision. And in the earlier case, the appeal court had found that it was Mpshe who had decided to indict.

Epstein tried to argue that Mpshe had not been invoking his power to review, but rather his power to “reconsider”, a power he also has under the Constitution.

But, said the justices, he was then “hamstrung” — because the Constitutional Court had previously found that when a decision-maker mistakenly took a decision under the wrong section of legislation — or, in this case, the Constitution — it invalidated the decision.

Epstein had to concede that the Constitutional Court judgment was “against me”.

Justice Azhar Cachalia raised further problems with Epstein. He questioned how any manipulation of the timing of the indictment could poison the decision to prosecute — which had been taken weeks before and was not contaminated.

Zuma’s counsel, Kemp J Kemp SC, had argued in his papers that the politically motivated manipulation by McCarthy went even further back — to at least 2001, when McCarthy had presided over the illegal Browse Mole investigation into Zuma.

In his heads of argument, he said that the Browse Mole investigation would in itself have been enough for Zuma’s team to get a stay of prosecution. Knowing this, it was entirely rational for the NPA itself to decide not to prosecute, said Kemp.

But, in court, Kemp also had to concede on the use of the wrong section by Mpshe. Yet, he said that if this were so, “what then must happen is that the representations would have to be considered by the NPA, because they have never been”.

He added that, even if the court said Mpshe’s decision had been irrational on further, substantive grounds, “then someone has to make a rational decision on our representations”.

“Are you giving us forewarning?” asked Navsa. He added that this was not something for the court to get involved in at this stage.

On the Browse Mole report argument, Cachalia added: “The whole political conspiracy thesis was rejected by this court in 2009. Which irons are you keeping hot in the fire now?”

Another aspect of the high court judgment to which Zuma and the NPA had vigorously objected was the statement that “Zuma should face the charges as outlined in the indictment”.

The judges said that, once they had set aside Mpshe’s decision to drop the charges, they were automatically reinstated. This would automatically make Zuma, once again, a criminal accused.

Both Epstein and Kemp disputed this in their papers: “The charges cannot practically simply appear without reinstatement and the formal procedural steps that requires,” says Kemp in his heads of argument.

But Epstein also faced tough questions on this score. Navsa said, if point X was a decision to prosecute and point Y was the decision to undo that, and then Y was set aside, “as a matter of law and logic, it [the decision to prosecute] remains extant, doesn’t it?”

In the end, Epstein accepted the logic of Navsa’s suggestion, but said the words used by the high court were inappropriate.

Kemp also accepted this logic, but said this did not mean that previous proceedings could “just seamlessly continue”.

He said the indictment would have to be re-served and there were “other difficulties”: at the time of the decision to drop charges, there was an appeal going to the Constitutional Court about one of the earlier cases.

Sean Rosenberg SC, for the DA, accepted that, if the appeal court did set aside the dropping of charges, it was not for the court to try to anticipate what would happen afterwards.

But he asked the court to ensure that there was no doubt that the prosecution was to go ahead — with whatever procedural steps that were necessary.

In the end, a hearing set down for two days was done and dusted before lunch on the first day, and judgment was reserved.

However, this does not necessarily mean we will see Zuma in the dock anytime soon.

Even if the DA wins, Kemp’s hints signify that there will be yet more legal wrangles — even taking the whole saga right back to where it was in 2007.