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Could This Be Zuma's Get-Out-Of-Jail-Free Card?

Zuma's lawyer made it clear that the president was seeking to make new representations in his case, should he be taken to trial.

13/10/2017 17:21 SAST | Updated 13/10/2017 17:24 SAST
Don Emmert/ AFP/ Getty Images

The Supreme Court of Appeal (SCA) ruling on Friday that President Jacob Zuma must be charged with fraud and corruption does not mean that the charge sheet against Zuma has been officially reinstated.

But a statement from his office gives an indication of Zuma's next step in his plan to stay out of court.

The court on Friday dismissed the two appeals brought by Zuma and the Acting National Director of Public Prosecutions.

The appeals were against a judgment by the Pretoria high court, which held that then acting National Director of Public Prosecutions Mokotedi Mpshe's decision in April 2009 -- to discontinue the prosecution of Zuma on serious criminal charges -- including charges of racketeering, corruption, money laundering and fraud -- was irrational.

Legal expert Professor Pierre de Vos said the SCA's judgment is a "damning indictment" on the National Prosecuting Authority (NPA), which pursued an appeal alongside Zuma.

"The court criticises [the NPA] for how they handled the appeal... One wonders what is going on in the NPA," de Vos said.

In its judgement, the SCA said that the manner in which the affidavits were drawn and the case conducted on behalf of the NPA was "inexcusable".

"The exclusion of the prosecution team from the final deliberations leading up to the decision to discontinue the prosecution appears to have been deliberate and is in itself irrational," the SCA said.

"The case law that formed the basis for Mpshe's decision to terminate the prosecution does not, in fact, support it. On the contrary, the cases, including an appeal court decision overlooked by Mpshe, are to the effect that questions of abuse of process in relation to a prosecution should be decided by a trial court and not determined by way of an extrajudicial pronouncement."

"The court criticises [the NPA] for how they handled the appeal... One wonders what is going on in the NPA." -- Professor Pierre de Vos

The court said, in reviewing Mpshe's decision to institute criminal proceedings against Zuma and ultimately making the decision to terminate the prosecution, Mpshe wrongly invoked and relied on Section 179(5)(d) of the Constitution and Section 22(2)(c) of the NPA Act.

"Thus, the concessions on behalf of Zuma and the NPA that, on that basis, the decision to terminate the prosecution was liable to be set aside, were rightly made... In light of what appears above, it is difficult to understand why the present regime at the NPA considered that the decision to terminate the prosecution could be defended," it said in its ruling.

De Vos asked a pertinent question: What is going to happen now, given the fact that the original decision to prosecute Zuma stands?

"Will Zuma get the NPA to change its decision or will he wait for charges to be brought against him and bring a permanent stay of prosecution to the court?" De Vos asked.

In the case of a permanent stay of prosecution, Zuma would have to argue that it would be impossible for him to get a fair trial as guaranteed by the Constitution -– something that is seen as a last resort.

Zuma's legal team will have to show that it would be impossible for Zuma to have a fair trial. Perhaps they may argue that, because the case has dragged on for almost a decade, witnesses would be unable to remember what happened, or that the media had since stained initial evidence with new reports.

"They [Zuma's legal team] may try to argue that this is not a watertight case," De Vos said.

He explained that the SCA's decision is effectively a ruling that says the president should be charged, but formal charges have not been laid against him.

What is going to happen now, given the fact that the original decision to prosecute Zuma stands?

But in a statement, the presidency alluded to what Zuma's strategy may be.

It said the effect of the SCA's decision is that the only legitimate decision made by the NPA is to prosecute Zuma. But more importantly, it means that representations have not been considered and the expectation is that the NDPP will now consider these representations under the correct prescripts of the law and make a legitimate decision.

"Any person has the right to make such representations and an expectation that a legitimate decision will be made... These representations will be amplified in light of developments in the ensuing period, not least of all are the recent revelations around the integrity of the audit report which underpins the prosecution," the presidency said.

In his arguments at the SCA, Zuma's lawyer, Kemp J Kemp, made it clear that Zuma was seeking to make new representations in his case, should he be taken to trial.

Interestingly, KMPG, the firm behind a now discredited Sars report, also compiled the state's forensic probe into Zuma.

Judging by the presidency's statement about dealing with the "recent revelations around the integrity of the audit report", it looks likely that the president's legal team may use questions over the legality of the withdrawn KPMG report on the Sars intelligence unit in arguing for a permanent stay of prosecution or for charges not to be laid at all.