The National Prosecuting Authority (NPA) and lawyers for President Jacob Zuma are considering a plan to ensure that it will be many years before the country’s first citizen gets to have his day in court.
The plan emerged after Zuma’s advocate, Kemp J Kemp, made a dramatic concession at the Supreme Court of Appeal on Thursday.
Kemp conceded that the decision by former prosecutions boss Mokotedi Mpshe to drop the 783 corruption, money-laundering and racketeering charges against Zuma was “irrational” and should be set aside.
Kemp told the full bench of Supreme Court justices in Bloemfontein, Free State, that Zuma wanted an opportunity to make fresh representations if the NPA decided to charge him again – news that left the justices visibly unimpressed.
This will leave the matter in the hands of National Director of Public Prosecutions Shaun Abrahams.
City Press has learnt from sources within the security cluster that Abrahams informally spoke with several of his top colleagues in the wake of Kemp’s concession.
This will continue the Stalingradesque war of attrition that Zuma has waged with the country’s courts for more than eight years over the spy tapes saga.
Officially, the NPA is awaiting the Supreme Court’s judgment, after which a decision will be formally made.
In terms of the plan, the sources said, the NPA would first study the judgment, which the court reserved on Thursday.
Thereafter, Zuma will be allowed to make his representations, which the prosecutions authority will entertain.
During this process, the NPA is also expecting legal challenges from the DA, which brought the initial application to have the charges reinstated against Zuma, as well as from civil society organisations.
These, the sources said, would be vehemently defended, all the way to the Supreme Court if necessary.
Thereafter, the sources said, Zuma would apply for a permanent stay of prosecution, which Abrahams would be expected to grant.
“This is going to be a lengthy and protracted legal battle. They anticipate the DA and civil society to press on with their fight,” one of the sources said.
NPA spokesperson Luvuyo Mfaku was unable to immediately reach Abrahams for comment yesterday, but said it was “highly impossible” that Abrahams would have been cooperating with such a strategy.
Zuma and Abrahams approached the Supreme Court, seeking leave to appeal a judgment by a full bench of the Pretoria High Court, which ruled last year that Mpshe was irrational in making his decision and that charges against Zuma should be reinstated.
Constitutional law expert Phephelaphi Dube said: “It is very likely that the Supreme Court verdict will turn down the appeal, based on the concessions.”
Dube said Abrahams would have to decide whether to reinstate the charges, bearing in mind that he had to act rationally when making that decision.
She added that Zuma still had the option to approach the Constitutional Court, but that his chances of success were limited.
“The Supreme Court decision would have been given by a full bench and he would need to provide compelling reasons as to why the Constitutional Court should hear the appeal,” said Dube.
Dube believes it will be difficult for Abrahams to grant Zuma a permanent stay of prosecution – and very difficult for him to justify.
“There was a complete docket ready in 2009. It would be irrational to not reinstate the charges,” she said.
Dube added that, if the NPA declined to prosecute, it must issue a certificate of non-prosecution, after which private individuals with a substantial interest in the matter could begin a private prosecution.
Yesterday, former prosecutions boss Mxolisi Nxasana said Zuma axed him after “he was told by [his former deputy Nomgcobo Jiba and some other people that I intended to reinstate charges against him”.
“I have always said that I do not know how I was going to reinstate them without having even read the docket,” he said, adding that he was then subjected to a dirty tricks campaign by state intelligence agencies.
If the Supreme Court of Appeal (SCA) confirms that the decision to drop corruption charges against President Jacob Zuma should be overturned, will we be able to call Zuma ‘Accused Number One’ again?
Justice Mahomed Navsa asked whether a ruling confirming the decision to drop charges was irrational wouldn’t, as a “matter of law and logic”, mean Zuma’s prosecution was back on the table.
There is legal authority for such a view. In an earlier SCA decision reviewing the decision to drop criminal charges and disciplinary proceedings against former crime intelligence head Richard Mdluli, the court ruled that “[t]he setting aside of the withdrawal of the criminal charges and the disciplinary proceedings have the effect that the charges and the proceedings are automatically reinstated”.
But the court importantly continued that it was “for the executive authorities to deal with them.”
This finding was based on concerns related to the separation of powers, which precludes the courts from usurping functions of the executive.
If this principle is applied to Zuma’s case, it would mean that the charges will be reinstated automatically if the court finds the decision to drop them was irrational.
How do you feel about the president fighting the claims for eight years, while always professing to want his day in court?