16 October 2017
On Friday, eight-and-a-half years after the first application was brought to court, the Supreme Court of Appeal (SCA) finally ruled that the decision to withdraw the charges against Zuma in April 2009 was invalid. Over this time, there have been numerous cases, cases within cases, appeals and counter-appeals in what has become an ongoing saga.
Timeline of events
Let us briefly look at the timeline, excluding all the court cases:
So, where are we now?
Paragraphs 60, 61 and 62 of the SCA’s judgement make it clear that the charges are reinstated – the NPA has no discretion. Comments like Gwede Mantashe’s that the party must wait for Shaun Abrahams to take a decision, are not correct. The only question is when the NPA will serve an indictment on Zuma (ie charge him). In that sense, the spotlight now moves from Zuma to Shaun Abrahams, who leads the NPA.
Zuma’s strategy all along has been to play for time and use every legal option available to prevent his case from coming to court. He has done so successfully for eight-and-a-half years. He will do so again. He has three further cards to play:
In support of the first two, all kinds of contrived arguments can be advanced. These include arguments floated in the media this past weekend: Too much time has passed; he can’t get a fair hearing; the KPMG investigator critical to the state’s case was also involved in the SARS rogue unit report that KPMG itself has now repudiated, and so on. Legally, of course, it is all nonsense. Paragraph 86 of the SCA judgement makes it clear that these issues are to be decided by the trial court, not by the prosecutor. For a Constitutional Court appeal, he will have to prove that a constitutional principle is at stake.
Regardless of the legal merits of these three courses of action, they will, once again, buy him time.
Court scathing of the NPA
The SCA was really scathing in its comments on the NPA. From ‘…it beggars belief that the present regime at the NPA … saw fit to defend (the) decision (to withdraw charges) as being rational’ to ‘… it is difficult to understand why the present regime at the NPA considered that the decision to terminate the prosecution could be defended.’
Even if one is very thick-skinned, the bottom line is that rules and values exist, and the NPA will be measured against these. Abrahams cannot quite do as he wishes.
The critical question for South Africa is whether the NPA will serve the charges. Can South Africa do what Brazil has done - send a former president to jail on corruption charges? Lula da Silva was found guilty and given a ten-year jail sentence. He is currently free pending an appeal.
If Shaun Abrahams decides not to prosecute after he has received Zuma’s representations; a private prosecution is likely to be launched by AfriForum and Gerrie Nel, even though this will be difficult. They indicated their intention to do this over the weekend.
There are only 61 days to go to the ANC Elective Conference. Whether the party will make any move before then, remains to be seen. History suggests no.
Even if they do nothing, the verdict of Friday the 13th must add some pressure to the Zuma camp. The real question is: How it will influence branch nominations? An impact of the judgement could be that it may make it very difficult for the ANC to avoid having the Elective Conference in December.
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