Endgame nears for JZ and his NPA appointee
A Constitutional Court ruling may result in the president finally facing 783 criminal charges
or favour. It is thus our view that the envisaged prosecution against Mr Zuma was not tainted by the allegations against Mr [Leonard] McCarthy [former head of the former Scorpions crime-fighting unit]. Mr Zuma should face the charges as outlined in the indictment.”
The court then refused leave to appeal. As has been the practice of the Zuma legal team, no doubt funded by the public purse, a bifurcated strategy was employed. The president petitioned the Supreme Court of Appeal (SCA) and Shaun Abrahams, now the NDPP, approached the Constitutional Court.
The i mplications of the Constitutional Court’s decision not to hear the case “at this stage” is not entirely clear. It may mean that, whatever the merits, the court wants to ascertain whether the SCA intends to hear the appeal. If the SCA decides that there is no merit in the appeal, the Constitutional Court may then reconsider.
That raises the question of why the Constitutional Court did not await the outcome of Zuma’s petition to the SCA before deciding not to hear the appeal “at this stage”.
As many have argued previ- ously, the decision of the Pretoria high court hardly broke new legal ground. In its decision in National Director of Public Prosecutions and Others v Freedom Under Law, the SCA had made it clear that the decision of the NDPP not to prosecute a case is reviewable for want of legality. Hence the argument raised by Abrahams — that a major principle of law must now be determined by a higher court, regarding whether a review of a prosecutor’s decision breaches the doctrine of separation of powers — is legal nonsense.
Abrahams and his legal team may be unaware of the significance of the SCA judgment.
As the full Bench of the high court noted: “A prosecution is not wrongful merely because it is brought for an improper purpose. It will only be wrongful if, in addition, reasonable and probable grounds for prosecuting are absent, something not alleged by Mr Zuma and which in any event can only be determined once criminal proceedings have been concluded …”
It is therefore reasonable to speculate about the consequences that will flow from this, in the event that the appeals by the NDPP and the president are dismissed by both courts. The most significant point is that the prosecution of Zuma will have been reinstated and, without any further litigation by the NDPP, preparation for the trial will commence. Kemp J Kemp SC will have to dust off his advocate’s robe.
Abrahams could decide afresh to discontinue the case against Zuma. What might he say in justification? Presumably he could argue that seven years have elapsed since the Mpshe decision and that, after this lapse of time, a successful prosecution would be difficult, hence it would not be in the national interest to initiate so risky a legal venture against the president of the republic.
Within minutes of such an announcement, a host of organisations would doubtless inform the nation that this decision will be taken on review — manifestly a justifiable legal move.
Given the findings of the full Bench, it would be very difficult for Abrahams to provide a rational basis for why a prosecution could not be feasibly launched, especially in the light of the factual findings made by the full Bench. These concerned the views of the prosecution team, led by Billy Downer SC, and the constant refrain from the NDPP over a number of years, that there is a clear case for Zuma to answer.
A refusal to prosecute by Abrahams could be met with a swift reversal by the courts. It does appear that within the next 12 months the endgame in this long-running saga will finally be played out.