Only the end of the beginning
Friday’s Supreme Court of Appeal judgment that the decision by the National Prosecuting Authority (NPA) in 2009 to withdraw criminal charges against President Jacob Zuma was irrational and unconstitutional has reset the clock back to 2005, when the charges were first made.
We now have a sitting president facing 783 charges of fraud. In another country or at another time, this would have brought on a political crisis. But as Zuma is suspected of having done far worse since he became president in 2009 — there are stacks of evidence that he has been the hidden hand behind the capture of the state by the Gupta family, which he has used to enrich his family — the revival of the charges has not caused a political ripple.
While the latest outcome of the 12-year court drama is welcome, as the court pointed out, we are nowhere close to the end of it all. In a judgment that was scathing of the NPA and its top management and disapproving of the legal counsel of the president, Judge Mahomed Navsa quoted poet TS Eliot’s phrase “the recurrent end of the unending” as a summation of how he felt about the entire saga, intimating too that it was far from over.
So, although the charges are back and the NPA has been given a lesson in what independence really means, the signals are such that it is unlikely Zuma will see the inside of a courtroom anytime soon and perhaps ever.
The first obstacle to getting a trial under way is that it is Shaun Abrahams, now head of the NPA, who must decide whether the case is fit to take to trial. Zuma’s counsel has indicated that it intends making further representations to the NPA on why that is not the case. Having considered these representations, in the unlikely event that Abrahams does go ahead, then the next likely step by Zuma will be to apply for a permanent stay of prosecution. This, again, implies a lengthy legal process.
The second obstacle will be lining up the witnesses for a trial more than a decade after the crimes were allegedly committed. Zuma’s co-conspirator, Schabir Shaik, has already been tried, found guilty, jailed and released on medical parole. It is far from clear whether he would give evidence to incriminate Zuma. The situation of other witnesses is also unclear. So, while the end looks not to be the end, we have learned some new things from Friday’s judgment.
The first is that the recordings that Mokotedi Mpshe relied on — given to him by Zuma’s attorney, Michael Hulley — can only be assumed to have been illegally obtained and illegally passed on. Although it had been promised at an earlier stage that the legal authorisation for the tapping of Directorate of Special Operations head Leonard McCarthy’s phone lines would be provided to the court, this never happened.
The second is the appalling and deleterious conduct of the NPA and its two top officials at the time — Mpshe and Willie Hofmeyr. Not only did they act wrongfully and unconstitutionally in taking it on themselves not to prosecute, instead of leaving it to a trial court, they also lied to their own prosecutors, used subterfuge, used information illegally obtained, plagiarised their media statement and in the case of Hofmeyr, reached conclusions that were based on his own conjecture and political supposition.
The third thing learned is the depth of the cynicism of the president and his legal team led by Kemp J Kemp. Having reached the end of the road, Kemp conceded after 12 years of evasion and obfuscation that, in fact, it was wrong for the NPA to withdraw the charges and that there was no alternative but to reinstate them. He left us in no doubt that he will again do the same as the next set of circumstances come into play and will draw SA into a deeper “recurrent end of the unending”.
THE THIRD THING LEARNED IS THE DEPTH OF THE CYNICISM OF THE PRESIDENT AND HIS LEGAL TEAM