THE BLOG

Could President Jacob Zuma Dodge The SCA Bullet Once More?

If Shaun Abrahams decides to grow a backbone and charge Zuma, then the case is likely to be dismissed.

18/10/2017 10:23 SAST
Siphiwe Sibeko/ Reuters

At a time when we South Africans have so much to complain about, could we just take a minute and salute our stellar judiciary? Whether it is the Supreme Court of Appeal [SCA] in Bloemfontein or the Constitutional Court in Johannesburg, South Africa has impressive legal minds on the bench and watching them run our courts makes us proud and makes for exciting television.

Whether the judges probingly question counsel or ask counsel to clarify some principle of law, our members of the bench never miss a beat with pointed follow-up questions and they almost instinctively pounce whenever incomprehensible arguments are presented.

In the appeal case of Zuma v The Democratic Alliance [DA] and others, the judges of the SCA did not disappoint when they questioned counsel for Zuma and the National Prosecuting Authority [NPA] during oral argument and forced experienced counsel to concede, respectively, that the NPA decision to withdraw corruption charges against Zuma was irrational and that the case against Zuma had merit and was not in doubt.

It has been a long and tortuous road to bring Zuma to answer to his 18 charges relating to an arms deal in the 1990s. Since 2009 the DA has tried to have the NPA reinstate the charges relating to fraud, corruption, racketeering and money-laundering.

Last week the SCA upheld the 2016 finding by the North Gauteng High Court, that the NPA's refusal to charge the president was illegal and irrational, thus leaving National Director of Public Prosecutions [NDPP], Shaun Abrahams, with the task of instituting criminal action against Zuma based on the original indictment, unless of course, Abrahams can find another legal basis for not charging Zuma.

South Africans were relieved that the judges of the SCA were unpersuaded by the NPA argument that the decision by the lower court infringed upon the doctrine of the separation of powers. In their judgement, the SCA leaves the past and present members of the NPA looking less than credible or independent.

Zuma's lawyers hope to impugn the NPA report and in so doing render prosecution without any prospect of success and for this reason the NDPP, Abrahams, may decide not to prosecute.

However, the Zuma camp was probably not too disappointed [despite their public assertions to the contrary] because the ball is now back in the hands of the ineffective Abrahams who has consistently proven that he is overwhelmed by the job and unable to make the NPA an independent institution that acts with integrity. A spokesman for the Presidency indicated that it expected that Abrahams would consider representations that Team Zuma intends to make and then make a "legitimate decision".

The SCA held that the original decision not to prosecute Zuma was not rational because the NPA prosecutors asserted that they had a watertight case against Zuma. According to Zuma and his legal team, the NPA's watertight case is largely based on forensic work done by former KPMG senior partner, Johan van der Walt, and they intend to question the integrity of the report that was compiled, thus giving the NDPP a different legal basis not to indict the president. Van der Walt is currently being investigated by the Independent Regulatory Board, as he was the auditor responsible for the now discredited South African Revenue Service [Sars] report.

Zuma's lawyers hope to impugn the NPA report and in so doing render prosecution without any prospect of success and for this reason the NDPP, Abrahams, may decide not to prosecute. The disheartening fact is that given the serious lack of credibility surrounding KPMG SA, a decision by Abrahams not to prosecute will be understandable. If Abrahams, however, does agree to go ahead and prosecute, then Zuma's legal team will most definitely ask the court to throw out the case against the president, because of the KPMG SA report.

Team Zuma probably performed an impressive happy dance, once they realised that the NDPP must now make a rational decision on whether to prosecute President Zuma, for the ultimate chess player Zuma, has once again out-manoeuvred all South Africans, having placed a man after his own heart at the head of the NPA in 2015 already.

And just in case NDPP Abrahams decides to grow a backbone and charge Zuma, then the case is likely to be dismissed thanks to a compromised KPMG SA, which compiled the report that is central to the prosecution of Zuma. This will probably lead to Zuma dodging the bullet once again and all of us having to agree that the consummate politician seems to have Lady Luck right beside him.