South Africa

South Africa

NPA to appeal the Spy Tapes ruling

NPA to appeal the Spy Tapes ruling

National Director of Public Prosecutions Shaun Abrahams on Monday said the National Prosecuting Authority (NPA) has applied for leave to appeal the judgment that overturned the dropping of the charges against President Jacob Zuma. It will have to get the court to agree to the appeal, which may not be easy. By GREG NICOLSON.

Speaking to a full auditorium on Monday at the NPA’s Pretoria headquarters, Abrahams said the recent judgment from the North Gauteng High Court, which overturned former NPA boss Moketedi Mpshe’s decision to drop charges of fraud, racketeering and corruption, must be tested on appeal as it has far-reaching implications for the prosecuting authority. He claimed it leaves prosecutors “denuded” and raises implications for the separation of powers.

Abrahams said the application for leave to appeal is based on six points of law. This is an important matter of principle which affects all prosecutions. I believe it needs a decision from an appeal court,” said the NPA boss. The NPA will argue that its national director is best placed to decide whether abuses in the prosecuting process should lead to a discontinuation of a case.

At the end of April, a full bench of the South Gauteng High Court made a unanimous judgment that Mpshe’s decision to drop charges against Zuma was irrational. Mpshe dropped the the charges against Zuma in the run up to the 2009 election after the “Spy Tapes” revealed former Scorpions boss Leonard McCarthy had discussed manipulating the timing of serving an indictment. Mpshe said it would be unfair and unjust towards Zuma to continue the prosecution and would harm the public image of the NPA.

The South Gauteng High Court said, “Having regard to the conspectus of evidence before us we find that Mr Mpshe found himself under pressure and he decided to discontinue the prosecution of Mr Zuma and consequently made an irrational decision. Considering the situation in which he found himself, Mr Mpshe ignored the importance of the oath of office which demanded him to act independently and without fear or favour. It is thus our view that the envisaged prosecution against Mr Zuma was not tainted by the allegations against Mr McCarthy. Mr Zuma should face the charges as outlined in the indictment.”

The NPA will argue that the court does not have the power to overturn Mpshe’s decision to focus on its integrity and independence rather than pursue charges against Zuma. While Abrahams would not go into detail on who he consulted before deciding to appeal the decision, he said he had discussed the judgment with those who represented the NPA in court. He had not spoken to the prosecuting team, which in 2009 believed the charges against Zuma should go ahead, he said. Nor did he speak to the president’s legal team. The decision to apply for leave to appeal was taken “by me, only me”, Abrahams said.

The NPA boss spoke at length about the role of the NPA and its mandate to act independently and without fear or favour. He knew there were many people who want the prosecution against Zuma to proceed and many who don’t, and not everyone would be pleased with his decision, he said.

When asked about a similar case in the Supreme Court of Appeal regarding former crime intelligence boss Richard Mdluli, in which the NPA accepted the court’s powers, Abrahams struggled to answer but eventually said the facts of the cases are different and shouldn’t be conflated. Abrahams was also questioned on why the NPA didn’t seek to directly go to the Constitutional Court. He said they wanted to first show confidence in the SCA.

It was never a consideration of attempting to delay this matter. That was the truth. In fact, it wasn’t a consideration at all,” Abrahams said on claims the NPA may be trying to delay the prosecution of the president. Earlier in the briefing, he was adamant he was acting independently. “I’m not a passenger in anyone’s vehicle and I never will be a passenger in anyone’s vehicle,” he said. “I am not a politician and have no interest to be one or be embroiled therein.”

Responding to the announcement, the Democratic Alliance, which instituted the court action to have Mpshe’s decision overturned, said the decision to apply for leave to appeal was “a blatant delaying tactic to shield President Zuma”. Party leader Mmusi Maimane said, “The reasons advanced by Advocate Abrahams – that he was acting in the best interests of prosecutorial independence – is a farce. Abrahams is preoccupied with protecting President Zuma at all costs – no matter what the implications are for the Constitution, the taxpayer or due process.”

The South Gauteng High Court will now have to consider whether to grant the NPA leave to appeal. It could be difficult, with the prosecuting authority appearing to present similar arguments that were rejected during the court hearing. The judgment also came from a full bench of three judges, meaning there are likely fewer points of law on which to find fault.

Abrahams also on Monday refuted reports that Finance Minister Pravin Gordhan is facing imminent arrest for his involvement in establishing the SARS “rogue unit”. The NPA boss said there are no charges of espionage against Gordhan, but he did not rule out other future charges, saying the investigation is still to be completed. “I hope to make a decision in respect of some of these matters in the near future,” said Abrahams. “The matter is not on my desk. It will only make its way to me once the investigation is complete.”

Abrahams hit out at the media, commentators and politicians who he said have been discrediting the NPA’s integrity and in the process harming South Africa’s economy by speculating on the investigation around the SARS officials. DM

Photo: NPA head Shaun Abrahams (GCIS)

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