Zuma may have his day in court

NPA’s rul­ing in 2009 to drop charges was ir­ra­tional, judge agrees

Daily Dispatch - - News - By NOMAHLUBI JOR­DAAN

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

Pic­ture: HALDEN KROG

HOT SEAT : Judge Louis Harms takes up his po­si­tion on the bench ahead of his read­ing of the judg­ment in the Na­tional Prose­cut­ing Au­thor­i­ties’ ap­peal in the Judge Ni­chol­son ver­dict in the Ja­cob Zuma cor­rup­tion case

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