A Quick Guide to the Jacob Zuma Matter

See this quick guide to the basics on the Jacob Zuma matter … why did the NPA bring charges? Why did they drop charges? Is this the end of the case? What legal precedents are being set and what is their significance?

Why did the National Prosecuting Authority (NPA) bring charges against Jacob Zuma, president of the ANC, in 2007? What is the background to these charges?

On the 28th of December 2007, Mr Jacob Zuma, President of the ANC, was charged with various counts of racketeering, money laundering, corruption and fraud. This was the second time such charges were brought.

The allegations against Mr Zuma first came to the public attention in 2003 when the then National Director of Public Prosecutions, Mr Bulelani Ngcuka, made an announcement that there was a ‘prima facie case’ of corruption against him.  However, Ngcuka declined to prosecute Zuma on the ground that the state did not have a winnable case at the time.

The NPA – headed by Ngcuka’s successor Advocate Vusi Pikoli, charged Zuma for the first time in 2005. This followed the conviction of Zuma’s close friend and financial adviser, Mr Schabir Shaik, on two charges of corruption, and for soliciting a bribe for Zuma from a French arms deal beneficiary in exchange for protection from possible investigation into the arms deal.

As a result of Shaikh’s conviction, then South African President, Mr Thabo Mbeki, released Mr Zuma from his duties as the country’s Deputy President in June 2005.  However, in 2006, the Pietermaritzburg High Court dismissed Zuma’s corruption case because the prosecution team was not ready to prosecute the matter.

Mr. Zuma was subsequently recharged in December 2007, shortly after he was elected as President of the ANC at the party’s 2007 Polokwane Conference. At this conference, he defeated then South African President Mbeki for the leadership position of the ruling party.

According to the 2007 indictment (charge sheet), Mr. Zuma was to appear before court on 14th of August 2008. A series of legal challenges by Mr. Zuma relating to evidentiary and procedural matters followed. Finally, the trial date to hear the merits of the corruption charge was set for 25 August 2009. Zuma was also expected to apply for a permanent stay of prosecution.

Why did the NPA drop charges against Jacob Zuma? Was the decision based on the merits of the case?

On 7 April 2009, Acting National Director of the NPA, Mokotedi Mpshe, announced that charges would be dropped against Zuma because of alleged political interference leading to an abuse of the legal process.  Such manipulation and abuse of process, according to Mpshe, were evident from transcripts of telephone calls between Leonard McCarthy, ex-head of the Scorpions, and Bulelani Ngucka, ex-head of the NPA.

Among other things, Mpshe maintained that there was evidence that McCarthy and Ngucka colluded to change the timing of the announcement of the reinstitution of charges against Zuma so as to maximize the detrimental effect to Zuma. Mpshe concluded that it would therefore be “unfair and unjust” to continue with the prosecution.
Mpshe described the alleged abuse of process by McCarthy and others as a “policy aspect militating against prosecution”. Mpshe said the NPA’s decision took into account 1) the merits of the case against Zuma; 2) any legal defences Zuma may have concerning the fairness of any trial; 3) the practical implications and considerations of a continued prosecution of Zuma; and 4) the policy aspects militating against prosecution. However, only the latter – the policy aspects – had guided his decision.

The NPA’s decision was not based on a lack of merits – the NPA has stated on record that Zuma had a solid case to answer, and would have received a fair trial had the matter been pursued.  However, the NPA ultimately took the view that the alleged political interference and abuse of process in his case rendered the continuation of the trial “unconscionable.”

What have been the various responses to the NPA’ s decision? Why is the matter receiving such great attention?

Broadly speaking, two opposing responses are evident. On the one hand, critics argue that the decision potentially threatens the rule of law and the basic democratic principle of equality before the law. These critics argue that the decision to drop charges was based on political considerations, rather than on sound legal reasoning. They contend that the NPA has given Zuma preferential treatment.  They also raise the concern that the corruption charge – which Zuma will now no longer required to answer in court – will cloud his presidency. There are also others who decry the abuse of state institutions unveiled by the NPA, but think that Zuma should still have had his day in court.

On the other hand, some have long argued that Jacob Zuma is innocent and that a political conspiracy drove the corruption charges against him, and thus now feel vindicated. These commentators argue that Zuma’s rights have been violated by the abuse of legal process uncovered by the NPA, and that Zuma has effectively been tried unfairly in the court of public opinion.

The matter is receiving such great attention for a number of reasons.  First, the prosecution threatened to act as an obstacle to the Presidency of Zuma, who is widely tipped to win on April 22nd.  Second, the allegations of misconduct within the NPA potentially reflect negatively on the legacy of former President Thabo Mbeki, and various others officials.  Finally, the decision has received much attention because it effectively ends any opportunity for the merits of the case against Zuma to be heard in a court of law.

What did the tapes allegedly say? Were the tapes legally obtained?

The tapes allegedly contained conversations between McCarthy and Ngcuka in which they discussed the charges against Zuma.  Most of the discussion centered on the timing of the announcement to reinstate the charges.

According to Mpshe, after receiving the tapes the NPA approached various agencies that have a legal mandate to intercept phone calls to see if they had obtained recordings of the same conversations from the tapes submitted by the defense.  The National Intelligence Agency (NIA) confirmed that it had legally obtained recordings of many of the same conversations which were obtained during the investigation of the production and leaking of the Browse Mole report.

The 18- page Browse Mole report was a top-secret intelligence document compiled by the Directorate of Special Operations (Scorpions) in 2006. The document claimed that Mr Jacob Zuma – Deputy President of the ANC at the time – was involved in a conspiracy to topple Mr Thabo Mbeki, then President of both the ANC and South Africa. The document further alleged that Zuma’s cause was supported by funding from the Angolan President, Mr  Eduardo Dos Santos and Libyan President, Mr Muammar Qadhafi.

Although Mpshe confirmed that the NIA had legally obtained copies of the same conversations, he did not address the question of how Mr Zuma obtained copies of these conversations.  It is unclear whether the defense copies were obtained from the NIA itself or from a third party.

Is this the end of the case against Jacob Zuma? Are legal avenues to challenge the NPA’s decision being pursued?

All charges against Jacob Zuma were formally withdrawn by the Pietermaritzburg High Court on 7 April 2009 and he will no longer be required to stand trial.

It is worth noting that certain parties have indicated their willingness to pursue legal avenues to challenge the dropping of charges, including an application for judicial review of the NPA’s decision. The High Court is expected to consider the review application on 9 June 2009.

Will further prosecutions follow arising from the NPA’s disclosure of abuse of process?

Regarding political interference, although McCarthy and Ngucka have been fingered for political manipulation, Acting Director of the NPA Mpshe has stated Mbeki was not involved in the alleged abuse of process. Some have argued that the state should bring charges against all those involved in the alleged abuse of process – whether that is McCarthy, Ngucka or Mbeki. They caution against selective prosecution in this regard.

It has been reported that opposition political parties have filed a complaint against Leonard McCarthy, and Bulelani Ngcuka in this regard.

Regarding illegal leaking of evidence, recent reports suggest that the National Intelligence Agency itself leaked the information to Zuma’s lawyers and there have been growing calls for charges to be brought against all those involved in the possession and distribution of these tapes. There are indications that complaints have now been laid against Zuma’s lawyer Michael Hulley and National Intelligence Agency (NIA) deputy head Arthur Fraser in this regard. The NIA has, however reportedly denied that the Arthur Fraser has leaked the information.

According to the law, what should guide the NPA’ s decision to prosecute a case? What does South Africa’s prosecution policy say?
.
The Constitution (section 179) says that the NPA must act “without fear or favour”. Section 179(5)(a) of the Constitution also states that the National Director of Public Prosecutions (NDPP) must determine a prosecutions policy with the concurrence of the minister of justice and that this policy must be observed in the prosecution process.
The Prosecution policy says the following: “Once a prosecutor is satisfied that there is sufficient evidence to provide a reasonable prospect of a conviction, the policy states that a prosecution should normally follow, unless public interest demands otherwise.”  “Public interest” can mean a wide variety of things in the context of the decision to prosecute, including such factors as:  the nature and seriousness of the offence, the interests of the victim and the broader community and the circumstances of the offender.  The prosecution policy mandates that the relevance of these factors and the weight to be attached to them will depend upon the particular circumstances of each case. Further, the policy stresses that “It is important that the prosecution process is seen to be transparent and that justice is seen to be done.”
What are some of the important legal precedents in the Jacob Zuma matter, and what is their significance?
There are two essential precedents in the Zuma case.  First, Pietermaritzburg Judge Chris Nicholson decided that the charges were unlawful because of the National Prosecution Authority’s procedural irregularities.  For instance, the NPA did not allow Zuma a chance to make representations, which the Constitution requires, before deciding to charge him.  Nicholson also noted that he believed there had been political interference in the decision to prosecute Zuma, but relied on the procedural violation as the determining factor which made the charges unlawful.  Although many media reports incorrectly reported that the charges had been dropped, the NPA was allowed the opportunity to recharge Zuma once the procedural flaw had been corrected, namely by allowing Zuma to be informed of the gist of the case against him and to make representations to the NPA regarding the case.

The second case concerned an appeal of Nicholson’s ruling lodged by former President Thabo Mbeki.  This appeal was heard in January 2009 by Deputy Judge President Louis Harms of the Supreme Court of Appeal in Bloemfontein.  Harms ruled that Nicholson’s Constitutional interpretation was incorrect and that the NPA was thus not required to provide the procedural guarantees which Nicholson demanded in his ruling.  Finally, and most importantly from the perspective of the recent decision to drop charges, Harms found that Nicholson and the lower court had “overstepped the limits of its authority” in raising allegations of political meddling.  The significance of this case is that Harms found that “A prosecution is not wrongful merely because it is brought for an improper purpose.”  The NPA’s decision to drop the charges seems to contradict this statement, which stands as valid and binding precedent.

For further questions, please contact Shameela Seedat at sseedat@idasa.org.za

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