Judge Squires’s ruling could be crucial in Zuma’s legal battles
IT IS not a foregone conclusion that the High Court in Pretoria will grant the National Prosecuting Authority ( NPA) and President Jacob Zuma leave to appeal against its decision that the dropping of fraud and corruption charges against the president was irrational and, therefore, needed to be set aside. This is according to a lobby group — the Council for the Advancement of the South African Constitution (Casac) — following intense speculation that the NPA would seek to appeal against the Supreme Court of Appeal (SCA) decision.
Calls for Mr Zuma to stand down and have his day in court on the charges against him have reached a crescendo. But NPA spokesman Luvuyo Mfaku said yesterday the organisation was still reflecting on the way ahead.
This comes as South African Communist Party (SACP) deputy general secretary (and Deputy Public Works Minister) Jeremy Cronin strongly denied that he had called for the charges against Mr Zuma to be reinstated.
Casac executive secretary Lawson Naidoo said yesterday that, “given the sense of the North Gauteng High Court judgment” handed down by Deputy Judge President Aubrey Ledwaba last week, “it is not a foregone conclusion that they will get leave to appeal the decision”.
Mr Naidoo said that Casac welcomed the unanimous judgment setting aside the April 2009 decision by Adv Mokotedi Mpshe not to proceed with the 783 counts of fraud, corruption and racketeering against Mr Zuma.
He said Judge Ledwaba was of the view that the appropriate forum to determine whether there was an abuse of process in the decision about when to prosecute Mr Zuma was a court, and not “extra-judicially” by the NPA.
“Casac’s view is that the only logical and sound interpretation of the high court’s ruling is that it restores the situation as it was immediately before the decision to discontinue the charges was taken: namely, that as things stand, Pres- ident Zuma is indicted with numerous serious charges of fraud, corruption and racketeering,” Mr Naidoo said. “On this interpretation, the national director of public prosecutions, Adv Shaun Abrahams, has no decision to take. The charges are reinstated ... the NPA should proceed with the prosecution of Mr Zuma.”
He also said the court had put it succinctly, saying: “Mr Zuma should face the charges as outlined in the indictment.”
Mr Naidoo concluded that: “The grievous consequence facing SA is that we have a sitting president, recently found to have violated his constitutional obligations by the Constitutional Court, now also facing 783 counts of corruption and related offences. The nation must now contend with the political and constitutional implications that flow from this.”
Yesterday, Mr Cronin distanced himself from reports suggesting that the SACP had broken ranks, and that it wanted Mr Zuma to have an opportunity to clear his name against the charges in court.
He told Business Day: “The matter is now fully in the court of the NPA, and it now needs to provide rational grounds for dropping the charges against Mr Zuma or reinstating them, and this needs to be done expeditiously.”
While the full political effect of the judgment is yet to play out, the multiple calls for unity in the ANC and the tripartite alliance show some disarray.
With almost all opposition parties baying for the president’s recall, the pressure is clearly on. However, the ANC says, while the court had described the dropping of the charges as irrational, “no substantive findings had been found against the president”.
If, as Casac observes, the de facto situation now is that the NPA should proceed with Mr Zuma’s prosecution, then things will come to a head quite rapidly.
But if it goes the route of applying to the High Court in Pretoria for leave to appeal, that could take months and push the matter beyond the August 3 local government elections.
However unlikely, should the court grant leave to appeal, it could take much longer, perhaps even years, to get the matter to the Supreme Court of Appeal, which means that it could still be unresolved when the ANC goes to its elective conference next year.
Perhaps, a key to a further round of legal battles are the words of Judge Hilary Squires when he sentenced Mr Zuma’s then financial adviser, Schabir Shaik, to 15 years for fraud and corruption.
“It would be flying in the face of common sense and ordinary human nature to think that (Shaik) did not realise the advantages to him of continuing to enjoy Zuma’s goodwill to an even greater extent than before 1997; and even if nothing was ever said between them to establish the mutually beneficial symbiosis that the evidence shows existed, the circumstances of the commencement and the sustained continuation thereafter of these payments, can only have generated a sense of obligation in the recipient.
“If Zuma could not repay money, how else could he do so than by providing the help of his name and political office as and when it was asked, particularly in the field of government contracted work, which is what Shaik was hoping to benefit from. And Shaik must have foreseen and, by inference, did foresee that if he made these payments, Zuma would respond in that way.”
Given Judge Squires’s ruling, it would seem difficult for the High Court in Pretoria to grant leave to appeal, meaning Mr Zuma could go on trial while a sitting president.
The charges are reinstated ... the National Prosecuting Authority should proceed with the prosecution of Mr Zuma