Former president Jacob Zuma. Photo: ANA

In The News South Africa

Judgement reserved in Zuma spy tapes appeal request

BLOEMFONTEIN, September 14 – The Supreme Court of Appeal in Bloemfontein on Thursday, reserved judgement after President Jacob Zuma’s lawyers admitted that the quashing of hundreds of criminal charges against him were “irrational”.

Shortly before the 2009 polls, after Zuma had won the contest for the leadership of the ruling African National Congress, then acting National Prosecuting Authority (NPA) boss, Mokotedi Mpshe, withdrew 783 charges linked to the multi-million rand 1999 arms deal.

Since then, the Democratic Alliance (DA) has challenged the matter in court. In May last year, the North Gauteng High Court ordered that Zuma must face all the charges. The President then took the matter to the Supreme Court of Appeal.

On Thursday, legal representatives for the NPA and Zuma were at pains as they tried to persuade the court to allow the appeal.

Initially two days had been set aside to hear legal team’s oral representations, but by lunchtime they had wrapped up the matter. But not before the NPA’s legal counsel conceded that Mpshe had “used the wrong power” to withdraw charges against Zuma.

The NPA said it accepted that Mpshe could not rely upon section 179 of the Constitution, as he earlier declared, as this section did not allow the prosecuting authority to review its own decisions.

Advocate Kemp J. Kemp, counsel for Zuma, made the same concession. He also conceded that a decision to withdraw charges, that was based solely on the timing of the indictment, was irrational.

Arguments around what was to happen with regards to the legal proceedings against Zuma, dominated the rest of proceedings.

“If the decision to prosecute stands unchallenged, and the attempt to undo it is found invalid, what is the effect?” asked Justice Mohamed Navsa.

Kemp conceded that the decision to prosecute Zuma then still stands, but pointed out that it didn’t mean that court proceedings against Zuma could simply be continued where it left off. The legal process had to be “kick-started” in some way again by, for instance, the serving of an indictment.

Judgement has been reserved.

The chairman of the DA’s federal executive, James Selfe, said from the concessions made by the lawyers and the questions from the bench, it seemed that the court was poised to set aside the decision to scrap Zuma’s prosecution.

“This opens the way for Jacob Zuma, finally, to have the day in court that he has been asking for, for the last 15 years. Like any other ordinary citizen, he must face up to the mountain of charges against him.”

Selfe said he hoped that  the court would in its judgment give clarity as to how the NPA should deal with a revived prosecution.

However, should it be necessary, the DA would take further legal action to ensure that Zuma was charged, raising the spectre of the party taking on the NPA.

“For far too long the ANC political elite has been allowed to escape accountability simply because they are connected. This must not be allowed to stand. All citizens must face up to charges if they are brought against them, and the same must be true for Jacob Zuma,” he said.

Furthermore, The so-called “spy tapes” came under discussion in the second session of President Jacob Zuma and the National Prosecuting Authority’s application for leave to appeal the High Court ruling that the NPA’s discontinuation of charges against Zuma be set aside.

These tapes refer to recorded telephone conversations used by the NPA and Zuma’s legal teams to help attribute an ulterior political motive to the NPA’s Leonard McCarthy’s desire to postpone Zuma’s indictment to after the ANC’s Polokwane conference in 2007.

Justice Navsa voiced concern that legal authorisation had only been obtained with regards to intercepting McCarthy’s telephone calls, while no such authorisation seems to exist for intercepting calls of people like Ronnie Kasrils and the NPA’s Billy Downer.

The appeal court judges also pointed out that they had difficulty establishing that McCarthy was really the driving force behind the decision to postpone, purely by looking at the content of the transcriptions.

Zuma and the NPA is asking for leave to appeal a judgement of the Gauteng North High Court last year, which ruled in favour of the Democratic Alliance (DA), setting aside the 2009 decision by the NPA’s former Director of Public Prosecution Mokotedi Mpshe to discontinue the corruption case against Zuma, on the basis of irrationality. The application is being heard by a full bench of appeal judges.
Earlier, Proceedings started in the Supreme Court of Appeal in Bloemfontein in the latest chapter of the legal battle between President Zuma and the National Prosecuting Authority on the one side, and the Democratic Alliance on the other.

Zuma and the NPA is asking for leave to appeal a judgement of the Gauteng North High Court last year, which ruled in favour of the DA, setting aside the 2009 decision by the NPA’s former Director of Public Prosecution Mokotedi Mpshe to discontinue the corruption case against Zuma, on the basis of irrationality. The application is being heard by a full bench of appeal judges. Justices Navsa, Boshelo, Tshiqi, Cachalia and Leach have set aside two days to hear submissions

The NPA’s submission got off to a rough start when Advocate Hilton Epstein was castigated by the court for the late filing of additional heads of argument outside of the main record.

Justice Navsa called the state of the record “chaotic”, asking an apology from both the NPA and President Zuma’s legal teams.

The first issue addressed was whether Mpshe was authorised to withdraw charges against Zuma, as according to existing case law, a Director of Public Prosecution can not review his own earlier decision.

Justice Cachalia pointed out that the NPA filed contradictory affidavits around this, first saying that the decision was a corporate one taken by both Mpshe and Leonard McCarthy, former head of Special Operations, and later saying that it was taken by McCarthy alone.

The NPA is submitting that McCarthy had deliberately postponed the serving of the indictment on Zuma until after the ruling African National Congress’s Polokwane conference in 2007, in order to advance former President Thabo Mbeki’s leadership prospects. And that this was the main reason motivating Mpshe to rationally halt Zuma’s prosecution.

Justice Cachalia pointed out to Epstein that, according to a previous judgement by the Supreme Court of Appeal, the motive of the prosecutor was irrelevant.

“How can you then argue that the prosecution was contaminated, if the only concern was around the date of the indictment? I have great difficulty in accepting this,” Cachalia went on to say.

Epstein explained that there was no contention that a strong case existed against Zuma. “But the contention is that the conduct by the prosecutor was so manipulative and aimed at influencing matters as serious as who should lead the country. That abuse cannot be tolerated.”

Justice Navsa pointed out that there was no evidence of Mpshe weighing up different considerations before making his decision to halt prosecution.

Justice Cachalia put it even more strongly: “The abuse of power may well warrant a prosecutor to abstain from prosecuting. But in this case he (Mpshe) invokes an abuse of process. He either had no idea what he was doing, or he was not applying his mind. With respect, those reasons are nonsense.”

Epstein explained that Mpshe was simply protecting the integrity of the prosecution. And that it was up to the prosecuting authority to decide if one of its member’s conduct was grievous enough to warrant the withdrawal of charges.

The hearing continues.

– African News Agency (ANA)

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