SCA ruling means Zuma has little wiggle room left

In 2005 Jacob Zuma, then the deputy president, was charged following the conviction of his erstwhile business associate, Schabir Shaik, on grounds of fraud and corruption. In 2006 these charges were struck out by the high court, but in December 2007 a fresh indictment was served on Zuma, based on money laundering and corruption.

That decision prompted further litigation, and ultimately representations made to the National Prosecuting Authority (NPA) in 2009. In April that year, the then acting national director of public prosecutions (NDPP), Mokotedi Mpshe, announced that he was withdrawing these charges following allegations of improper political motives by members of the NPA.

More than eight years later, the Supreme Court of Appeal (SCA) has ordered the reinstatement of the charges, having found that Mpshe’s decision was irrational.

This judgment is unlikely to be the end of the saga.

As Judge Mahomed Navsa, Acting Judge President of the SCA, observed: “Minutes into the argument before us counsel for both Mr Zuma and the NPA conceded that the decision to discontinue the prosecution was flawed. Counsel on behalf of Mr Zuma, having made the concession, with the full realisation that the consequence would be that the prosecution of his client would revive, gave notice that Mr Zuma had every intention in the future to continue to use such processes as are available to him to resist prosecution.”

The concession made by counsel for Zuma and the NPA was a narrow one, namely that Mpshe had applied a provision of the Constitution to justify his decision, which was inapplicable in this case. Briefly, section 179(5) of the Constitution, which he invoked, gives the NDPP the power to alter a decision made by one of his subordinates, but does not apply when the initial decision to prosecute Zuma was taken by the NDPP himself.

It might have been thought that this narrow concession allowed wriggle room for a further appeal to the Constitutional Court, namely that, on the basis of section 179(2) of the Constitution, the NDPP has the power to change his own decision. But, once it is conceded that the decision is irrational — for whatever reason, even on the basis that the invocation of a particular section is not applicable, — that is surely the end of this line of argument.

Yet, and correctly so, Navsa went further to explain the core basis of the irrationality of the decision to drop charges: “A prosecution brought for an improper purpose, so said this court in that case, is only wrongful if, in addition, reasonable and probable grounds for prosecuting are absent. In the present case, on the NPA’s own version, the case against Mr Zuma is a strong one. Once it is accepted that the motive for a prosecution is irrelevant where the merits of the case against an accused are good, the motive for the timing of an indictment to begin the prosecution must equally be so.”

The judgment had a number of other interesting aspects. Navsa was scathing in his criticism of Willie Hofmeyr, who deposed to the affidavit on behalf of the NPA and was a key player in Mpshe’s ultimate decision.

In dealing with Hofmeyr’s affidavit, Navsa said: “Professedly advancing the cause of the NPA’s independence and integrity, he achieved exactly the opposite. One now has a better appreciation of the reluctance of counsel on behalf of the NPA to be associated with the affidavits filed on its behalf.”

Focusing further on the approach adopted by the NPA to this case, the judge commented: “It beggars belief that the present regime at the NPA, on its own version of events, saw fit to defend Mr Mpshe’s decision as being rational.”

This observation is highly relevant, given the obvious tactics being employed by Zuma’s legal team. As is evident from a statement by the presidency, Zuma will be making fresh representations to the present NDPP, Shaun Abrahams. We are also informed that part of the attack will be on the integrity of the forensic evidence in the Shaik trial of one Johan van der Walt — who is much loved by South African Revenue Service commissioner Tom Moyane for his report on the so-called “rogue unit” in Sars, but under serious fire from others for the contents of this report.

It appears that the president agrees with Van der Walt’s critics, for this is clearly going to be the basis of one of his grounds for making representations.

Back in 2009, however, Zuma made representations dealing with the merits of the prosecution, including his intention to challenge the inclusion of racketeering charges in the indictment, and whether this would inevitably lead to delays in the prosecution, which would undermine his right to a fair trial. He also raised the matter of the financial costs of the prosecution, the legal implications associated with prosecuting a sitting president and the risks of political, economic and social instability should the NPA proceed with its prosecution, and hence the effect of the trial on the administration of justice.

When he assessed these grounds at the time, Mpshe rejected them all, save for the motive in bringing the prosecution. He stated clearly that the NPA believed it had a strong case.

Other than the time lapse, there is surely not much more Zuma can say beyond these arguments. So, if there was a strong case in 2009, can the NPA, on the basis of this judgment, again drop the charges? This judgment makes it more difficult to so do.

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