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Bringing Zuma to justice a long way off

Publish date: 16 October 2017
Issue Number: 4327
Diary: Legalbrief Today
Category: General

There are myriad theories about what President Jacob Zuma’s next step will be following Friday’s expected SCA judgment, which confirmed the 783 corruption charges which have hung over his head for 12 years, should be reinstated, but one viewpoint is shared by all analysts – Zuma will not give up the fight and the chances of him ever having his day in court remain as remote as ever. That, notes Legalbrief, is a given – especially as he has an unlimited stash of taxpayers’ funds to continue to take on those that want him to face justice. Most analysts are of the view that the key player in Zuma’s future now is the man the President chose to head the NPA, Shaun Abrahams, who to date has shown his eagerness to shoot down Zuma’s perceived enemies (his embarrassing attempt to bring charges against Finance Minister Pravin Gordhan) 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.

Zuma, as has been the case since the very beginning, remains unperturbed, apparently confident the tarnished KPMG image will stand him in good stead, notes Legalbrief. On new representations to the NPA, his spokesperson Bongani Ngqulunga said: ‘Any person has the right to make such representations and an expectation that a legitimate decision will be made. These representations will be amplified in light of developments in the ensuing period, not least of all are the recent revelations around the integrity of the audit report which underpins the prosecution,’ he said. A Rapport report suggests Zuma may also use the Seriti arms deal inquiry findings to advance his case. The commission found in April 2016 that there were no irregularities in the arms deal transactions. However, notes a Saturday Star report, Zuma’s woes could yet worsen, as he was likely to face a legal claim of at least R10m from the DA following his failed appeal. DA federal council chairperson James Selfe said his party had, in its eight-year legal battle against Zuma, spent more than R10m in legal fees alone. They would file for proceedings to recoup the money from Zuma and the NPA. Selfe reckons there is no way out for Zuma. ‘After the formal charges, Zuma can then make representations to the NPA. Abrahams must serve Zuma with an indictment.’ DA leader Mmusi Maimane threatened to approach another court if Abrahams failed to charge Zuma within nine days. ‘The matter is now straightforward. The charges now stand, and a court of law must hear this matter.’

Full Saturday Star report (subscription needed)

Presidency statement

Full report in Rapport (subscription needed)

Huge pitfalls stand in the way of a successful prosecution, according to a City Press report. Highly-placed sources within the NPA and security cluster reportedly told the newspaper that these include the fact that the top prosecutor initially involved in the case, Advocate Billy Downer, will no longer be able to participate. Another crucial fact is that Zuma’s convicted former financial adviser, Schabir Shaik, has previously indicated that he would testify in support of Zuma, not against him, although weekend reports suggest he has changed his mind (see report below). ‘That leaves us with (French defence company) Thomson-CSF’s (former) secretary, Susan Delique, as our key witness,’ one City Press 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.’ The source added that before Abrahams could announce his decision on whether or not to prosecute the President, Zuma would make representations to him. After that, if Abrahams decided that the prosecution should go ahead, Zuma’s lawyers would apply for a stay of prosecution. ‘I have seen the files, which have to be studied before the matter can be placed on a roll. That might take at least four years before we could be ready,’ the paper's source is quoted as saying.

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 commentary on Constitutionally Speaking

The SCA decision struck another blow against the credibility and integrity of the NPA‚ and its capacity to exercise its mandate without fear‚ favour or prejudice, according to the Council for the Advancement of the SA Constitution (Casac). Casac says the suitability of Abrahams to continue to hold office as the National Director of Public Prosecutions must now be seriously questioned because his tenure continued to bring the NPA into disrepute. It added, according to TimesLIVE: ‘In view of the history of this saga we believe it is in the public interest and the interests of justice for the charges to be prosecuted forthwith.’ A Weekend Argus report quotes NPA spokesperson Luvuyo Mfaku, on claims that Abrahams was protecting Zuma, as saying: ‘That is rubbish, utter rubbish. We are not politicians. Why would we protect politicians,’ he said. De Vos agreed an indictment had to be served on Zuma. He also noted that any responsible citizen will also have to ask how Zuma and his legal team managed to obtain the so-called ‘Spy Tapes’ (they could not have been obtained legally), and why Zuma’s legal representative, Michael Hulley, was never criminally prosecuted for his unlawful possession of transcripts of the intercepted conversations. ‘At the very least, it must suggest that the intelligence service was abused to protect President Zuma from prosecution,’ says De Vos on his Constitutionally Speaking blog.

– TimesLIVE

Full Weekend Argus report (subscription needed)

A different perspective is offered by former NPA heavyweight Advocate Gerrie Nel in a Beeld report. He suggests a decision to drop the charges again may actually lead to a more speedy prosecution, notes Legalbrief. Nel is quoted in Beeld as saying his new employer – AfriForum’s private prosecution unit – is on stand by. ‘I’m confident that we will get a certificate to prosecute the President if the NPA decides not to do so.’ Professor James Grant, criminal law expert from the University of the Witwatersrand, says private prosecution is a real possibility if Abrahams declines to prosecute and the private prosecution body can prove that it has a ‘substantial and specific interest in the matter, represents the community and is acting in the public interest’. However, Grant believes there are no legal grounds for the NPA to drop the charges again. ‘It would be strange if that happens,’ he said.

Full Beeld report

Shaik, meanwhile, says he is prepared to testify should Zuma be tried. A Sunday Tribune report notes many of the corruption charges Zuma faces relate to his dealings with Shaik, who was sentenced to 15 years in prison in 2005 on similar charges. ‘Of course, I cannot refuse if I am called to do so. But that does not mean I am going to do so in a vindictive manner. I will be guided by my conscience and welcome the opportunity to put certain aspects of my relationship and dealings with the President into perspective, which I did not have the opportunity to do previously. Perhaps it would bring closure once and for all and give the President his day in court to explain matters for himself,’ Shaik is quoted as saying. Shaik’s role as possible witness against Zuma – he previously indicated he wouldn't give evidence against Zuma, notes Legalbrief – is interpreted by many in his inner circle as a double-edged sword, according to the Sunday Tribune report. If he is seen as a hostile witness, he stands to lose the presidential pardon he desperately hoped for during his medical parole. On the other hand, with two years to go to complete his sentence, he has nothing to lose whatever he says. But he remains adamant. His testimony will not be aimed at settling scores.

Full Sunday Tribune report (subscription needed)

The Thabo Mbeki Foundation responded in a statement yesterday, 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 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

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