POLITICS

President Jacob Zuma And The Curious Case Of 19577/09

For eight years, the president has fought against his day in court.

14/09/2017 06:03 SAST | Updated 14/09/2017 08:33 SAST

President Jacob Zuma's legal team jet into Mangaung so they can argue for the eighth year running against the head of state having his day in court. This time, they are before the Supreme Court of Appeal.

For eight years, the DA has pursued the president and the National Prosecuting Authority (NPA) to push for the reinstatement of 783 counts of corruption, fraud, and racketeering against him. These counts arise from the arms deal where a separate court found the president's former financial advisor Schabir Shaik guilty of corruption on the same sets of misdemeanours.

For all of his presidency, Zuma has dodged the hearing whilst declaring publicly on numerous occasions that he wants his day in court.

For eight years, the president's battalion of advocates, marshalled by his long-time confidante and lawyer, Michael Hulley, have fought against it. The case number 19577/09 tells you how long it has dragged through the courts: in court numbering, the "09" is the year of the first appearance.

This means that for all of his presidency, Zuma has dodged the hearing while declaring publicly on numerous occasions that he wants his day in court.

Leave to appeal
The hearing, which is set down for Thursday and Friday, is going to be very technical and feature personalities other than Zuma.

In fact, it is unlikely that the 783 counts will come up at all, except tangentially.

On Thursday, the president is arguing for leave to appeal before the SCA while the DA says this is unnecessary and that its win before the North Gauteng High Court last year should stand.

That court found that the then acting director of public prosecutions, Mokotedi Mpshe, had been irrational in withdrawing charges against Zuma. Three judges directed that these be reinstated.

And they refused the president leave to appeal.

Now the SCA wants to hear the arguments for and against an appeal in an open court, with the seasoned Judge Mahomed Navsa presiding.

A little background is important
Mpshe dropped the charges in the white-hot time after Zuma's triumph as party president at the ANC's conference in Polokwane in 2007.

A few days after the conference, the head of the Scorpions, an advocate called Leonard McCarthy, indicted Zuma. A few months later, Mpshe dropped the charges in a tense press conference.

Mpshe argued that McCarthy had tainted the prosecution by acting in a partisan fashion.

He had been loyal to former president Thabo Mbeki and attempted to use the forthcoming charges to influence the outcome at Polokwane by striking at Zuma ahead of the Polokwane conference, the NPA argued.

This was not only related to when he decided to charge, but also because his team had authored the Browse Mole report which made numerous allegations against Zuma.

And the court heard evidence of how McCarthy walked in quick step with the former national director of prosecutions, Bulelani Ngcuka, who was a Mbeki man through and through. He took counsel from Ngcuka on when to charge and left Mpshe out of the picture.

It was a mess.

Rogan Ward / Reuters
Jacob Zuma and arms company Thint's boss Pierre Moynot talk in the dock at the Pietermaritzburg High Court, February 4, 2009.

The DA says...
The DA agrees it was a mess at the Scorpions and the NPA, but not a big enough one to compromise a huge case and to delay justice. Its lawyers will argue that "... the envisaged prosecution against Mr Zuma was not tainted by allegations against McCarthy. Mr Zuma should face the charges as outlined in the indictment."

Mr.Mpshe's decision was clouded by emotion, unsubstantiated facts, inadequate investigation, confusion about his role...

The North Gauteng High Court agreed with the party's arguments and it added that a court was the correct venue to take a decision to drop charges -- it can't be left to the whim of the national prosecutor.

The DA will argue again that: "Mr Mpshe's decision was clouded by emotion, unsubstantiated facts, inadequate investigation, confusion about his role, a failure to appreciate the requirements of the authorities he relied upon and confusion about the effect of Mr McCarthy's actions...

"Based on the material before him, Mr Mpshe could not rationally have reached the decision that this case involved an abuse of the kind which was so serious and egregious, that it justified the extraordinary step of withdrawing the prosecution of Mr Zuma."

President Zuma says...
The president says the lower court was wrong in its reasoning and it was wrong not to grant him the right to appeal its judgment. His lawyers will argue that the case is important to the president in his personal and political capacities, while lawyers for the NPA will argue that an appeal is important for them too.

McCarthy initiated an illegal investigation, the objective of which was to eliminate Mr. Zuma as a presidential candidate.

For the NPA, it needs to defend the authority of the national prosecutor's office (even though Mpshe is long gone) and its authority to make decisions on cases before them.

In addition, the president's legal team will argue that there has not been adequate legal reflection on the intentions of the Browse Mole report written by the Scorpions: "... McCarthy initiated an illegal investigation, the objective of which was to eliminate Mr Zuma as a presidential candidate".

Zuma does not believe the court adequately weighed the conspiracy against him as good enough reason to drop the charges. The president still has the option of applying to have the prosecution struck down.

Here's what it's costing you
Today, you will see a battalion of lawyers arguing for and against the president's right to appeal. The DA's James Selfe has pursued the case for his party for eight years and he estimates that the citizen has paid between R25 million and R30 million to fund the president's fight. "There are no new grounds [for appeal]," says Selfe, "this is just another delaying tactic".