Zuma should have been on trial – NPA
State details why there was no action
The National Prosecuting Authority has admitted that it should have put former president Jacob Zuma on trial for corruption 15 years ago, but denied that then prosecutions head Bulelani Ngcuka did not charge Zuma with his former financial advisor Schabir Shaik because he feared he’d clear his name. Instead, Ngcuka claims, his decision not to charge Zuma with Shaik then was driven by his deep concerns about the lack of evidence directly implicating the then deputy president in corruption, as well as his “doubt” that Zuma was aware of the bribe allegedly solicited for him by Shaik from French Arms company Thales. Further, according to lead Zuma prosecutor Billy Downer, Ngcuka felt that “a decision to prosecute when the NPA was not assured of a successful outcome would have a disruptive effect on the government and the broader South African society”. Downer says while he disagreed with Ngcuka’s decision on Shaik, he believes that it was taken “in good faith and not for any ulterior purpose”. Now, as part of the NPA’s response to Zuma’s bid to permanently stay his prosecution, the state has detailed for the first time why Ngcuka chose not to charge the then deputy president with Shaik because of his apprehensions about the evidence against him. According to Downer, “the evidence the NPA has discovered and gathered during the investigation consisted largely of letters, faxes and records, and in (Ngcuka’s) view there was insufficient witness testimony linking the contents of the documents in question to Zuma”. At that stage in the Zuma investigation, Downer said Ngcuka was also concerned that there wasn’t direct evidence that Zuma was directly involved in Shaik’s criminality. He also believed there was “insufficient corroboration” about Zuma’s role at various “critical meetings”. Further, Downer said, the answers Zuma provided to investigators about the corruption allegations against Shaik were “not very helpful” and led Ngcuka to believe that Zuma may have a reasonable defence to the charges against him. In court papers, Zuma argues that the state used its prosecution of Shaik as a “dry run” for its legal pursuit of him, thereby effectively robbing him of the opportunity to cross-examine the man later convicted and sentenced to 15 years behind bars for corrupting him. “The prejudice of not charging me with Shaik meant that the NPA was continuing with the investigation without me being aware and was testing the evidence in the Shaik trial so that it could be used against me later. This also meant that I would be deprived of cross-examining Shaik as his co-accused.” But Downer isn’t buying that argument and said Zuma’s stance was incongruous because “despite his (Zuma’s) repeated assertions that he is innocent, he maintains Ngcuka nonetheless ought to have charged him with Shaik so that he could cross examine Shaik if he (Shaik) testifies in his defence”.
“Zuma’s right to a fair trial does not entitle him to demand a trial designed and structured so as to serve his best advantage,” Downer said. He said the decision not to charge Zuma with Shaik did not violate his rights to a fair trial.