Zuma may have his day in court
NPA’s ruling in 2009 to drop charges was irrational, judge agrees
PRESIDENT Jacob Zuma could soon find himself in court answering 783 counts of fraud‚ corruption and racketeering charges that were “irrationally” dropped by the National Prosecuting Authority (NPA) eight years ago.
This comes after the Supreme Court of Appeal (SCA) ruled yesterday that the Pretoria High Court was correct in its finding last year that the NPA’s decision to drop the charges against Zuma was irrational.
The SCA dismissed an appeal by Zuma and the NPA to have last year’s high court decision set aside. While opposition parties welcomed the judgment, demanding that the president step down and calling on the NPA to charge Zuma, the ANC said it was was still studying the judgment.
The president, who had previously admitted that dropping the litany of charges against him was irrational, said he was disappointed by the judgment.
In 2009‚ the former acting national director of public prosecutions‚ Mokotedi Mpshe‚ decided to drop the 783 counts of fraud‚ corruption and racketeering against Zuma.
In reaching his decision‚ Mpshe relied on intercepted conversations between his predecessor‚ Bulelani Ngcuka, and Leonard McCarthy‚ head of the now defunct Scorpions.
The exchange between Ngcuka and McCarthy – popularly called the “spy tapes” – occurred shortly before the ANC’s Polokwane conference in December 2007‚ when Zuma was elected the new leader of the ANC.
The appeal court found that Mpshe had ignored a judgment made by the SCA in 2009 in another matter involving the president that a bad motive in prosecuting someone did not destroy a good case.
The judgment of Judge of Appeal Louis Harms overturned a Pietermaritzburg High Court judgment in 2008‚ which declared invalid the NPA decision taken in December 2007 to charge Zuma.
Harms also said the exclusion of the entire Zuma prosecution team from the process leading up to Mpshe’s decision to discontinue the prosecution was irrational.
Mpshe took the decision to discontinue the prosecution team in the final deliberations that took place on April 1 2009.
Other people in the prosecution team included senior prosecutors Willie Hofmeyr and Billy Downer.
“The compelling conclusion is that this exclusion was deliberate. The prosecution team’s subsequent memorandum protesting their exclusion is understandable.”
The prosecution team comprised senior litigators steeped in the case‚ acquainted with the case, who had a critically important contribution to make regarding the ultimate decision to terminate the prosecution.
In claiming that the timing of the serving of the indictment after the Polokwane conference was influenced by McCarthy and was an abuse of process which persuaded him to drop the charges‚ Mpshe had “failed to consider a material fact‚ namely‚ that the indictment would in any event not have been ready for service before the Polokwane conference”.
There had also been errors in the indictment that required correction and could have only been finalised on December 24 2007‚ after the conclusion of the ANC elective conference.
“This is a consideration that was material to arriving at a rational conclusion. The importance of this is that whatever the motivations of Mr McCarthy may have been in delaying the service of the indictment‚ the indictment was not ready to be served before the conference.
“For all these reasons, I can find no fault with the reasoning and conclusions of the court below [the high court in Pretoria] that the decision to discontinue the prosecution was irrational and liable to be set aside.”
In a statement, the presidency said: “The decision of the Supreme Court of Appeal today‚ whilst disap was much anticipated.
“The effect of the decision is that the only legitimate decision made by the NPA is to prosecute President Zuma.
“Importantly‚ it means the representations have not been considered and the expectation is that the NDPP will now consider these representations under the correct prescripts of the law and make a legitimate decision relating thereto.
“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.”
While the ANC said it would first study the judgment before commenting, party veteran Zola Skweyiya said in an interview with eNCA on the sidelines of a veterans’ conference yesterday: “There is no way in which we can run away from the realities. We must ask ourselves; can we go into an election with such a person leading the organisation?”
DA leader Mmusi Maimane – who claims Zuma’s legal bills have cost South African taxpayers about R30-million already – has given NPA boss Shaun Abrahams a 10day deadline to make a decision.
NPA spokesman Luvuyo Mfaku said they would only comment after studying the judgment. — DDC