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The Supreme Court of Appeal rules that President Zuma must stand trial

The Supreme Court of Appeal rules that President Zuma must stand trial

18 Oct 2017

Gerhard Erasmus, tralac Associate, comments on recent developments in the corruption charges against South African President Jacob Zuma

In 2009, when then President Thabo Mbeki was ousted, Mr Jacob Zuma became the president of the Republic of South Africa. His election, first as leader of the ANC and then as President of the country,[1] took place amidst allegations that he had committed serious criminal offences (racketeering, corruption, money laundering and fraud).[2]

Corruption charges were first brought against Mr Zuma during 2005, when he was Deputy-President of South Africa, after the conviction of his former business associate, Mr Shabir Shaik, on fraud and corruption charges. The core of the State’s case had been that Mr Shaik had made numerous payments to Mr Zuma, as bribes to advance his business interests.

In that same year that Mr Zuma became South Africa’s president, the Acting National Director of Public Prosecutions, Mr Mokotedi Mpshe, decided not to prosecute him. This decision has now been overturned by the South African Supreme Court of Appeal (SCA). Last week, this Court confirmed, in the latest chapter of what has become known as the spy tapes case,[3] an earlier decision by the Gauteng Division of the High Court, Pretoria, in terms of which the 2009 decision to discontinue the prosecution of Mr Zuma, was held to be irrational and set aside. The implication is that Mr Zuma must stand trial. Whether this will indeed happen, awaits to be seen.

The most recent order was at the instance of the Democratic Alliance, the official opposition in the National Parliament. The National Prosecuting Authority (NPA) and Mr Zuma made common cause when they both appealed against the setting aside of the 2009 decision not to prosecute. The NPA and Mr Zuma also got costs orders against them.

Mr Zuma is a remarkable politician. He has survived eight votes of no-confidence in Parliament, including one in 2017 which was conducted by secret ballot. He had seen many scandals, including when the Constitutional Court ruled in 2016 that he had violated the Constitution by failing to repay the money used on upgrading his private residence at Nkandla. (This included building a cattle enclosure, amphitheatre, swimming pool, visitor centre and chicken run.) He has also been acquitted on a charge of rape.

Mr Zuma, in addition, stands at the centre of serious allegations about state capture,[4] and that he has allowed members of the Indian-born Gupta family to wield undue influence in his government, with a deputy finance minister saying he was offered the job of finance minister by one of them.[5]

Highlights from the Judgement

The recent SCA case started off on a dramatic note.[6] Minutes into the argument counsel for both Mr Zuma and the NPA conceded that the 2009 decision to discontinue the prosecution was flawed and has to be set aside. That decision was irrational.

The Court is scathing of the behaviour of the NPA: In the light of what is set out in the preceding paragraphs, it beggars belief that the present regime at the NPA, on its own version of events, saw fit to defend Mr Mpshe’s decision as being rational.[7]

The concession, on behalf of Mr Zuma, was made with the full realisation that the consequence would be that the prosecution of his client would revive. Mr Zuma, of course, has every intention to use whatever processes available to him to resist prosecution.

Why were charges against Mr Zuma dropped in 2009? That decision was driven by what the Acting National Director of Public Prosecutions thought was the abuse (by the Director of Public Prosecutions[8]) of the prosecution process in relation to the timing of the service of the indictment on Mr Zuma. The Polokwane ANC party conference took place in December 2008. The NPA then claimed that there was a political conspiracy to prevent Zuma from becoming President.

The SCA found that not only were allegations of political machinations based largely on conjecture, they were irrelevant because they were unconnected to the integrity of the investigation of the case against Mr Zuma and the prosecution itself. The reasons for discontinuing the prosecution provided by Mr Mpshe do not bear scrutiny for the recordings themselves on which Mr Mpshe relied, even if taken at face value, do not impinge on the propriety of the investigation of the case against Mr Zuma or the merits of the prosecution itself.[9] He, in addition, misconstrued his powers under the Constitution.[10]

What happens next?

Speculations about future developments should start with a reminder about broader political considerations. Again, there is an ANC national conference in the picture. It takes place in December, when a new party leader and presumably the next president of South Africa, will be elected. And there is a connection with the allegations about state capture; also involving Mr Zuma. There has not been any official decision as to how to respond to these.[11] The explanation for this reluctance is rather obvious; the revelations could embarrass many.

As to Zuma’s immediate reaction to the latest judgment: He may decide to take the matter on appeal to the Constitutional Court. However, that appears to be an unwinnable option, but may buy time. The most likely next scenario is an approach to the NPA to make new representations. However, the recent SCA ruling to set aside the decision to discontinue the prosecution of Mr Zuma, technically means that the original decision to prosecute him, stands. If this interpretation is accepted, Mr Zuma’s prosecution must now commence. He can then defend himself by invoking whatever arguments considered relevant. Among them could be an argument that the charges should be dropped because they were first brought 12 years ago. To proceed now would amount to a denial of justice, the argument may go. Mr Zuma could also contest the integrity of the audit report underpinning the charges against him. That forensic report, prepared by the same former KPMG auditor involved with the now discredited report into the so-called rogue unit at SARS, formed part of the evidence in the trial and conviction of Schabir Shaik, Zuma’s former financial adviser.[12] However, the validity of the findings in that report is a matter to be decided as part of the criminal proceedings against the accused. If necessary, a new forensic investigation could be ordered.

Conclusion

The SCA decision struck another blow against the credibility and integrity of a vital state organ, the NPA. The problems for the NPA and for Mr Zuma go way beyond those relating to the concessions made on the basis referred to above. It is unsettling that different law enforcement agencies of government appear to be spying upon each other. Insofar as the tape recordings of the telephone conversations are concerned, other than the hearsay evidence of the communications between the members of the NIA and the NPA, we have no admissible substantiation concerning the authenticity or accuracy of the recordings.[13]

There are additional concerns, as pointed out by one commentator: It has to be asked how Zuma and his legal team managed to obtain the so-called ‘Spy Tapes’ (they could not have been obtained legally), and why Zuma’s legal representative, Michael Hulley, was never criminally prosecuted for his unlawful possession of transcripts of the intercepted conversations.[14]

A state built on the rule of law depends on independent and impartial institutions and officials. The head the NPA (which must exercise its mandate without fear‚ favour or prejudice) Shaun Abrahams, who to date has shown his readiness to shoot down Zuma’s perceived enemies (such as his embarrassing attempt to bring charges against Finance Minister Pravin Gordhan) may turn out to be the key player in Zuma’s future. The suitability of Abrahams to continue to hold office as the National Director of Public Prosecutions must now be seriously questioned. As stated in the SCA judgement, the conduct of prosecutors within the NPA falls to be considered.[15]

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[1] Mr Zuma became the President of the ANC on 18 December 2007 after defeating incumbent Thabo Mbeki at the ANC conference in Polokwane. He was re-elected as ANC leader in December 2012.

[2] Investigations related to the criminal charges against Mr Zuma commenced in 2001.

[3] Telephonic conversations between NPA officials were intercepted by the intelligence gathering authorities in 2008. Their content (allegedly showing a political conspiracy) was relied upon to justify the decision not to prosecute Mr Zuma. The Supreme Court of Appeal has now explained why those conversations where irrelevant for the purposes of deciding whether to prosecute or not.

[4]See the tralac newsletter of 13 October 2017, available at http://eepurl.com/c6KwMj

[5] http://www.bbc.com/news/world-africa-22513410

[6] The judgment is reported as: Zuma v DA (771/2016); ANDPP v DA (1170/2016) [2017] ZASCA 146 (13 October 2017).

[7] At par 92.

[8] One Mr McCarthy.

[9] At par 94.

[10] Section 179 of the Constitution.

[11] Parliament has launched an investigation into state capture but will apparently not call the Gupta family members. This inquiry was aimed at uncovering facts and as such “no one is accused of any wrong doing”. https://www.timeslive.co.za/politics/2017-10-17-gupta-brothers-unlikely-to-be-called-to-give-evidence-in-state-capture-inquiry/

[12] Legalbrief, issue nr 4327 of 16 Oct 2017. http://legalbrief.co.za/story/so-near-but-so-far/

[13] At par 63.

[14] https://constitutionallyspeaking.co.za/spy-tapes-judgment-npa-now-legally-obliged-to-prosecute-president-zuma-but-dont-hold-your-breath/

[15] At par 62.