Zuma spy-tapes: Another round in court this way comes

While the outcome of the motion of no confidence in Zuma is predictable (the ANC numerical dominance in the House will ensure its defeat), the arguments of the full Bench in the Pretoria court hearing will unfold more slowly, and it could be a while before a ruling.

But the DA has already spent five years and an estimated R10-million in legal costs to have its day in court. It was all about the principle that prosecutions must be made on points of law, not political considerations, said DA federal executive chairman James Selfe on Monday.

And the decision to discontinue the prosecution of Zuma was based on “irrational political considerations” and was thus irrational, invalid, unlawful and must be set aside.

The presidency in another late night statement at 9.45pm on Monday dismissed this, saying the DA had “relentlessly” pursued this court review. “The president has always contended that the court proceedings are an abuse of process by a political party in order to advance a political agenda,” the presidency said, adding the court hearing will show the decision of the National Prosecuting Authority (NPA) head was rational and would “withstand any scrutiny”.

Why is this of any importance? The immediate, simple answer, although qualified with plenty of “ifs”, is that Zuma may yet face a criminal trial, perhaps even as he serves out his second term as president. If the full Bench rules the decision to stop his prosecution was invalid, the National Prosecuting Authority (NPA) must revisit the decision by its then acting boss Mokotedi Mpshe to drop the criminal charges on the eve of the 2009 elections which saw the ANC president become head of state. The NPA may decide, on other reasons, not to relaunch the prosecution.

But the bigger picture here talks directly to increasingly loud accusations that key institutions such as the NPA, SAPS, Hawks and South African Revenue Service (SARS) have been captured through the appointment of the politically pliant. And so institutions meant to carry out their functions without fear, favour or prejudice are pursuing the factional agendas of those in power.

There are several examples, including National Director of Public Prosecutions Shaun Abrahams’s decision to withdraw fraud and perjury charges against his deputy Nomgcobo Jiba in one of his first announcements following his appointment in August 2015. At least two judges were highly critical of Jiba’s conduct in legal proceedings. Meanwhile, the NPA has reinstituted charges against former KwaZulu-Natal Hawks head Johan Booysen, even though a court had earlier ruled there was no chance of success.

DA MP Glynnis Breytenbach was criminally charged with defeating the ends of justice for deleting information from her NPA laptop, a charge she was acquitted of in her 2012 disciplinary proceedings. Charges are being instituted against those who fell out of favour: former Hawks boss Anwa Dramat and Independent Police Complaints Directorate (Ipid) head Robert McBride (he is also fighting his earlier suspension) are investigated for their role in the rendition of seven Zimbabweans, several of whom died once they were back in their home country.

Front and centre are the current ructions over the SARS’ “rogue unit” and the 27 questions the Hawks sent to Finance Minister Pravin Gordhan days before his 2016 budget. The first inkling there was something not quite right came on Budget Day last week when SARS commissioner Tom Moyane was absent in the traditional pre-budget photo and media briefing. But the news of the Hawks’ questions only broke afterwards.

Stating there was “no reason” for the Hawks to investigate him, Gordhan on Friday promised legal action, if necessary, to uphold his reputation and that of the National Treasury.

“There is a group of people that are not interested in the economic stability of this country and the welfare of its people. It seems they are interested in disrupting institutions and destroying reputations,” he said.

Gordhan has received the public support of the ANC, religious leaders and others. On Monday, the presidency stepped into the fray: “The President wishes to emphasise that Minister Gordhan remains the Minister of Finance and any positing that the position of the Minister is under any threat is dismissed with the contempt it deserves,” it said in a statement.

Earlier that day Selfe said given the current stand-off between SARS and the National Treasury, “you will be forgiven for thinking there are political agendas that go into decisions to investigate, decisions to prosecute”. And so for the DA, the review of the NPA decision not to prosecute Zuma must lead to a categorical, clear statement from the courts that prosecutions must be brought, or dropped, on points of law, not political machinations.

“Unless and until that principle is established… we will always have some doubt,” said Selfe, adding: “Never has it (the review) been more relevant. Never has it been more urgent”.

The DA is confident it has a good case. On the papers there’s no reason except the timing of bringing the charges, a political factor, for the discontinuation of prosecutions.

“We have very strong grounds for the review… to succeed because on paper it’s clear the decision was not taken on legal grounds,” said Selfe.

To recap in broad sweeps what is one of the longest sagas in South Africa’s legal and political history: on the eve of the 2009 elections, on 6 April 2009, Mpshe publicly announced charges against Zuma would be dropped because they had been politically influenced. This decision was based on the transcripts of the “spy tapes”, the recordings of phone conversations between former prosecutions boss Bulelani Ngcuka and his deputy, Leonard McCarthy. Originally the charges stemmed from Judge Hillary Squires’s conviction of Zuma’s former financial adviser, Schabir Shaik, but Judge Chris Nicholson tossed the counts out of court on technical grounds in August 2008. The NPA did not redraft the counts, but instead dropped charges against Zuma in April 2009.

In an earlier chapter, in 2003 Ngcuka famously said there would be no prosecution despite a prima facie case against Zuma. That was before Shaik went on trial, leading to his conviction in May 2005. In mid-2004 Ngcuka resigned: the political blowback led to allegations he was an apartheid spy, of which he was eventually cleared by the Hefer commission of inquiry, which found there was no evidence to sustain such an allegation.

For Zuma the April 2009 decision to discontinue prosecution cleared the legal hurdle even as he was being elected ANC president at the 2007 Polokwane ANC national conference, and as he was the face of the governing party’s 2009 election campaign.

The DA disagreed with the dropping of charges and started its legal battle for a review of that decision. In the unfolding legal wrangling (six court appearances in four years, and tons of paper used for heads of arguments) it emerged the prosecuting team disagreed with Mpshe’s decision to drop the charges and there was nothing protected by confidential disclosures in the hard-fought for “spy tapes” once the DA got them.

From Tuesday to Thursday the Gauteng North High Court in Pretoria will hear arguments on the review of that April 2009 NPA decision. What unfolds there, and in the judgment, could just be one of those cases to have a deep and lasting impact. However, it is unlikely to be the end of the road as appeals to the highest court of the land are likely from whatever side loses. DM

Photo: South African President Jacob Zuma arrives at a plenary session of the Africa-South America Summit in Margarita Island September 27, 2009. REUTERS/Jorge Silva.