High Court on Zuma's corruption charges: Not The End, but Damning

DA leader Mmusi Maimane, when he was asked outside the North Gauteng High Court on Friday morning before the High Court decided in favour of DA application, said, “It feels a little bit like the fourth quarter.”

The DA leader meant that while the party's seven-year fight to overturn the 2009 decision to drop corruption charges against President Jacob Zuma isn't over, at least the rounds are ticking over, with the DA's desire to have the charges reinstated more likely than ever. “I told you we would win,” he said as he left court hours later.

A full bench of the North Gauteng High Court on Friday found that former National Prosecuting Authority head Mokotedi Mpshe acted irrationally and failed to uphold his responsibilities of office when in 2009 he suddenly dropped charges against Zuma. The president faced charges of fraud, racketeering and corruption relating to an investigation started in 2001 into to payments Zuma received from Shabir Shaik, allegedly related to the arms deal, where he allegedly allowed his name to be used for business deals and agreed to protect one of the companies involved.

In 2009, Mpshe, who was then national director of public prosecutions, withdrew the charges after the “spy tapes” revealed former Scorpions boss Leonard McCarthy and former prosecutions head Bulelani Ngcuka had discussed manipulating the timing of serving an indictment on Zuma to influence the ANC's 2007 Polokwane conference. At the time, Mpshe said McCarthy's attempt to abuse the legal process would mean “it would be unfair as well as unjust to continue with the prosecution” and it could be prejudicial against Zuma and sacrifice the public's image of the NPA.

On Friday, the court tore apart Mpshe's justifications for dropping the case. Reading from the judgment, Deputy Judge President Aubrey Ledwaba said:

“Having regard to the conspectus of evidence before us we find that Mr Mpshe found himself under pressure and he decided to discontinue the prosecution of Mr Zuma and consequently made an irrational decision. Considering the situation in which he found himself, Mr Mpshe ignored the importance of the oath of office which demanded him to act independently and without fear or favour. It is thus our view that the envisaged prosecution against Mr Zuma was not tainted by the allegations against Mr McCarthy. Mr Zuma should face the charges as outlined in the indictment.”

Because of the public interest in the case Ledwaba read the full judgment, which said the decision to drop the charges against Zuma must be set aside. Furthering the court's finding in favour of the DA, which started the case almost immediately after Mpshe's decision in April 2009, the court ordered the national director of public prosecutions and the president to pay the opposition party's legal costs.

The court noted Mpshe in early 2009 had agreed with his prosecutors the charges should go ahead, but it questioned why after he listened to the spy tapes and met with a government minister he suddenly decided to drop the charges. There's no evidence that after listening to the tapes Mpshe heard anything he hadn't been told by his team, said the court, and in making the decision to drop the charges against Zuma Mpshe didn't consult or inform the prosecutors, who wanted to go ahead with their case. Ledwaba said the “sudden, inexplicable turnaround on this matter is irrational”. If the decision had been above board, he asked, “Why the secrecy?”

The court said there was no rationality in the claims that either McCarthy's attempts to influence the Polokwane conference or his involvement with the Browse mole report would have been prejudicial towards Zuma or have discredited the NPA had the case gone ahead and the proper place for the claims to be tested was in court. Essentially, the court found Mpshe's decision was likely based on his stated anger and betrayal at having heard the spy tapes and the pressure he was under. In a further blow to Mpshe, the court said the precedents he used to justify his 2009 decision had already in fact been overturned on appeal.

The presidency on Friday said:

“These charges were formally withdrawn by the High Court in Pietermaritzburg during April 2009 and as such there is no pending litigation before court against President Zuma. As a party to the proceedings, the president has noted the decision of the court and will give consideration to the judgement and its consequences and the remedies available in terms of our law.”

The ANC said it is pleased the matter is coming closer to resolution as “justice delayed is justice denied”. “It is important to note that the court did not deal with the merits of any allegations against President Zuma nor did it make any finding declaring guilt on any matter against President Zuma. Today’s judgment was solely a judicial review of an administrative action taken by the NPA as allowed for in our law. We trust that it shall therefore not be used by any in our society to infer any culpability in any crime or offence by the president,” said ANC spokesperson Zizi Kodwa in a statement.

Opposition parties are calling the ruling a victory. “This finding by the court is an overwhelming victory for the rule of law, and the NPA must now immediately continue with the 783 charges of corruption so that President Zuma can finally have his day in court,” said the DA's Maimane. “President Zuma must finally come to the realisation that he is not above the law.”

After Friday's judgment, Maimane admitted “it works out well” that it came in an election year, but he maintained that the party has pursued the issue over years, regardless of whether the timing benefits electioneering. With local government elections coming in August, the judgment is another blow for Zuma and the ANC, as the president has recently faced a finding that he violated the Constitution regarding the Public Protector's Nkandla report.

Cope on Friday demanded charges against the president be reinstated:

“Cope is delighted that all attempts by various role players to bury the nearly 800 charges against Zuma has not succeeded. Even more heartening is the fact that Zuma’s attempt to corrupt the criminal justice system to escape having his day in court has signally failed,” said party president Mosiuoa Lekota on Friday.

EFF spokesperson Mbuyiseni Ndlozi called for the charges to be reinstated.

It appears a foregone conclusion that the NPA and president will appeal the case at either the Supreme Court of Appeals or Constitutional Court. If neither appeal the case, it appears National Director of Public Prosecutions Shaun Abrahams is faced with the decision of whether to proceed with the charges against the president. On Friday, NPA spokesperson Luvuyo Mfaku would only say, “After carefully considering [the judgment] we will be in a position to outline the process.”

Advocate James Grant, who has a PhD in criminal law and often comments on legal matters in the media, said it's disingenuous to say Zuma faces no criminal charges. Grant believed with the court setting aside Mpshe's decision to drop the charges against the Zuma the situation goes back to the moments before that decision, which was when the president still faced criminal charges. He said, however, it's true the president does not currently face criminal charges but now it should be a matter of technicalities, such as whether Zuma needs to be indicted, summonsed or placed on the court roll again.

“I think they're going to have trouble,” said Grant on the possibility of the president and NPA being granted leave to appeal. The court's decision, he said, “was very solid” in finding Mpshe acted irrationally in every respect. Considering the attempts to delay the case thus far, however, it seems likely the NPA and president will try to take the case to either the SCA or even Constitutional Court.

While this likely isn't the end of the case, it's damning for President Zuma. No court has found against him on the alleged instances of corruption, but opposition parties will be energised by the judgment, and until the High Court decision is appealed, the corruption allegations are back on the table and claims of political interference are no longer valid. DM

Photo: South Africa's President Jacob Zuma reacts during a discussion titled 'The Future of Africa's Democracies' at the World Economic Forum on Africa in Dar es Salaam, Tanzania, 07 May 2010, on the last day of the 3-day meeting. EPA/DAI KUROKAWA