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rom the in­fa­mous Nkandla fire pool to the cre­ative ac­count­ing of the Fifa di­as­pora legacy pro­gramme and the great es­cape of Su­dan’s Pres­i­dent, Omar al-Bashir, South Africans have been asked to swal­low a lot of ex­tra­or­di­nary ex­pla­na­tions about what their politi­cians get up to.

Another com­pelling ad­di­tion to that list could well be the “myth of the im­mac­u­late pros­e­cu­tion”.

This con­cept, used by Pres­i­dent Ja­cob Zuma’s ad­vo­cate Kemp J Kemp more than 10 times in his heads of ar­gu­ment in the so-called spy tapes case, ap­pears to be the catch­phrase at the cen­tre of Zuma’s le­gal strat­egy to keep at bay the 783 counts of cor­rup­tion that have dogged him since well be­fore he be­came pres­i­dent.

Af­ter six years, more than an en­tire term in of­fice and two stops at the Supreme Court of Ap­peal (SCA), it will soon be high noon at the North Gaut­eng High Court, where the mer­its of the case to re­view the de­ci­sion to drop charges against Zuma will fi­nally be heard.

So what is Zuma’s le­gal strat­egy?

In a lot of ways, it is clas­sic Kemp, a con­tin­u­a­tion of what has been used in de­fence of Zuma all along, an ap­proach that has come to be known among com­men­ta­tors as “Stal­in­grad burn­ing”.

This is based on a com­ment made by Kemp in 2007, when Zuma went to court to chal­lenge at­tempts by the Na­tional Pros­e­cut­ing Au­thor­ity (NPA) to ob­tain doc­u­ments from Mau­ri­tius that al­legedly in­crim­i­nated him.

Judge Jan Hugo asked Kemp: “If a per­son pro­fesses his in­no­cence, then why go to all these lengths to pre­vent this ev­i­dence from be­ing ob­tained?”

“We think it is im­por­tant. This is not like a fight be­tween two champ fight­ers.

“This is more like [the World War 2 bat­tle of] Stal­in­grad. It’s burn­ing house to burn­ing house,” replied Kemp.

Such an ap­proach partly ex­plains why it has taken so long for the mer­its of the DA’s case to fi­nally be con­sid­ered in court.

And so, in his heads of ar­gu­ment, Kemp ex­pects the DA to jump through a lot of hoops, but the party may well have thought it­self clear of such hur­dles al­ready.

Kemp ar­gues, for in­stance, that the DA will again have to deal with is­sues such as de­mon­strat­ing why they have the le­gal stand­ing for a re­view de­spite the fact that the SCA pre­vi­ously con­sid­ered it.

It also means that, what­ever the high court de­cides, the chances of ap­peal are nigh on 100%.

But the real crux of Zuma’s de­fence, per­haps un­sur­pris­ingly for a case in­volv­ing a politi­cian, comes down to the ar­gu­ment that the DA is tak­ing the April 2009 de­ci­sion of the then act­ing NPA head, Mokotedi Mp­she – as com­mu­ni­cated in a press state­ment on the mat­ter – out of con­text.

“De­con­tex­tu­al­i­sa­tion char­ac­terised these pro­ceed­ings from be­gin­ning to end,” ar­gues Kemp, who says the DA has fo­cused de­lib­er­ately and my­opi­cally on Mp­she’s state­ment.

Mp­she’s de­ci­sion to drop the charges, ar­gues Kemp, was never solely about the tim­ing of the charges against Zuma but took place against a big­ger back­drop of the abuse of pros­e­cu­to­rial process.

En­ter the Browse Mole re­port

And here, ar­gues Kemp, the myth of the im­mac­u­late pros­e­cu­tion and the con­tro­ver­sial Browse Mole re­port come into play.

Kemp’s heads of ar­gu­ment make it clear that, what­ever the DA may say, the de­fence sees then Scor­pi­ons boss Leonard McCarthy as be­ing at the cen­tre of the Scor­pi­ons’ in­ves­ti­ga­tion and pros­e­cu­tion of Zuma.

McCarthy was also then pres­i­dent Thabo Mbeki’s man through and through.

Kemp points out that, in 2005, McCarthy tes­ti­fied un­der oath in an af­fi­davit that the in­ves­ti­ga­tion of Zuma had been a model of pro­pri­ety.

In Kemp’s dis­tinc­tive turn of phrase, he “[eu­lo­gised] the in­tegrity of the Zuma pros­e­cu­tion”.

In the state­ment in ques­tion, McCarthy said “...the slurs of the de­fence on the man­ner in which the state has con­ducted the in­ves­ti­ga­tion and pros­e­cu­tion of this case are scur­rilous and ut­terly un­founded”.

Mokotedi Mp­she


LE­GAL EA­GLE Kemp J Kemp (right) has served as the pri­mary ad­vo­cate for Pres­i­dent Ja­cob Zuma for sev­eral years, rep­re­sent­ing him in his high-pro­file rape trial and his cor­rup­tion trial

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