Zuma likely to brush off damning SCA ruling

The fallout from Friday’s Supreme Court of Appeal judgment, which confirmed that the 783 corruption charges against President Jacob Zuma should be reinstated continues to reverberate across the country. However, Legalbrief notes that there is bitter irony in the fact that Zuma appears no closer to having his day in court despite claiming it is something he yearns for. The SCA decided the Gauteng High Court (Pretoria) judgment reinstating the Zuma corruption charges could not be faulted. In April 2009, then acting National Director of Public Prosecutions Mokotedi Mpshe dropped the charges based on what became known as the spy tapes, which allegedly showed political interference in the decision. The NPA argued that determining the date for the serving of an indictment on Zuma was politically motivated, notes a BusinessLIVE report. However, the SCA found that the motivation behind the timing of serving the indictment would not affect prosecution. Judge Mahomed Navsa's judgment (it was read out by Justice Eric Leach), which was generally scathing of NPA leadership, past and present, sought to recap around 15 years worth of the sequence of events leading to Friday's decision to dismiss the NPA and Zuma's appeal against the High Court ruling that the 18 counts consisting of 783 charges be reinstated. ‘The reasons for discontinuing the prosecution provided by Mr Mpshe do not bear scrutiny for the recordings themselves on which Mr Mpshe relied, even if taken at face value, do not impinge on the propriety of the investigation of the case against Mr Zuma or the merits of the prosecution itself.’ There was also a contradiction because Mpshe had told the head of the prosecution team, Billy Downer, that the decision on when to serve the indictment was made by him alone. However, in a supplementary affidavit Mpshe said he had been ‘untruthful’. The court found that this explanation negatively affected Mpshe’s credibility and the soundness of his decision to discontinue the prosecution.

Full BusinessLIVE report

DA leader Mmusi Maimane said the judgment is a win for justice, the rule of law, and for South Africa. ‘Jacob Zuma will not defeat the ends of justice. The law applies to all, regardless of status,’ he said. Not so, claim highly-placed sources within the NPA and security cluster who told City Press that huge pitfalls stand in the way of a successful prosecution. These include the fact that Downer will no longer be able to participate. ‘That leaves us with (French defence company) Thomson-CSF’s (former) secretary, Susan Delique, as our key witness,’ one source is quoted as saying. ‘We are not sure if she will co-operate or if we will be able to locate her. I do not see the prosecution happening anytime soon because there are still two processes that have to unfold.’ Most analysts are of the view that the key player in Zuma’s future now is Shaun Abrahams, the man the President chose to head the NPA. To date he has shown his eagerness to shoot down Zuma’s perceived enemies but been reluctant to rock his boss’ boat. Zuma, may, of course, choose to take the matter on appeal to the Constitutional Court, but that appears to be an unwinnable scenario. The most likely next step following any indictment – and this scenario has been suggested by the man himself – is an approach to the NPA to make completely new representations. Among them would be an argument that the charges should be dropped because it has been 12 years since they were first brought and to proceed now would amount to a denial of justice. He will also tap into recent revelations around the integrity of the audit report which underpins his prosecution. That 260-page forensic report, prepared by former KPMG auditor Johannes van der Walt, the same man involved with the now discredited report into the so-called rogue unit at SARS, formed part of the evidence in the trial of Schabir Shaik, Zuma’s former financial adviser, which led to his conviction in the KZN High Court (Durban). Media reports suggest Zuma’s team has already written to Abrahams requesting an opportunity to study the ruling before responding, and the NDPP has agreed to wait for Zuma’s submissions before deciding on the next step.

Full City Press report

Constitutional law expert, Pierre de Vos, warns not to expect to see Zuma as a criminal defendant any time soon. He says Zuma’s legal team will make new submissions to Abrahams (who may or may not have the legal power to review the original decision to charge Zuma), to try to get the NDPP again to drop the charges against him. ‘Abrahams may or may not exercise any discretion he might have in this regard in an impartial manner,’ says De Vos on his Constitutionally Speaking blog. He adds: ‘If – either for valid legal reasons or because the NDPP is not independent – Abrahams again drops the charges, that might be the end of the matter and Zuma will be able to retire in peace. If Abrahams rejects the submissions of his lawyers, Zuma will be formally indicted after which his legal team will almost certainly approach the court to request a permanent stay of prosecution. This means that it is highly unlikely that, in the foreseeable future, Zuma will see the inside of a court room in his capacity as a criminal defendant.’

Full Constitutionally Speaking analysis

The Thabo Mbeki Foundation responded in a statement, recorded on the Daily Maverick site. It said it hoped the judgment ‘will finally put to rest what has been over this period a sustained narrative, devoid of truth and factual basis, that President Mbeki unduly interfered with law enforcement agencies in an effort to ensure the prosecution of Zuma’. It also took a swipe at Willie Hofmeyr’s role in the saga, saying: ‘It is a shame that we have in our country people charged with the responsibility of dispensing justice for the sustenance of our constitutional democracy who find it apposite that they can use such positions for the exact opposite ends, regardless of the consequences of their behaviour, as in the case of Mr Hofmeyr.’

Full Daily Maverick report