On Monday morning National Director of Public Prosecutions Advocate Shaun Abrahams did what everyone had known he was going to do all along. Even before the DA started arguing its case in the High Court in Pretoria that the corruption charges against President Jacob Zuma should be reinstated, there was no doubt that when the time came, he would appeal the obvious judgment that was coming. While it’s heartening to know we were right, it’s disheartening to know the cynicism was justified. But, unfortunately, it seems impossible now for Abrahams to maintain his claim, made with such theatre on Monday, that he doesn’t live in anyone’s pocket, and that he is acting honestly, independently, and without prejudice. By STEPHEN GROOTES.
From virtually the moment Shaun Abrahams was appointed to the position last year, there was really only one question that mattered. What would he do when the time came to prosecute the man who had appointed him? Everything else was, as the saying goes, bunk. But we knew early on what kind of person we were dealing with. He withdrew perjury charges against one of his four deputies, and his former boss, Advocate Nomgcobo Jiba. She had been found by a judge to have made a decision on evidence that did not exist at the time. And when he withdrew the charges he refused to take questions on the matter. Never a signal that someone is proud of what they are doing.
Abrahams started his press conference on Monday by thanking this writer for his repeated reminders of his promise to have regular interactions with the press. You may have noticed the reminders published in Daily Maverick from time to time. It’s always encouraging to be dealing with someone who is not afraid to dish it out. As a member of the commentariat who himself dishes it out on a regular basis, it’s important to take it when it comes. Not that Abrahams crossed any sort of line on that score, he is too classy for that.
However, it was possibly not wise to spend quite so much of the presentation explaining how he is such an independent person. Yes, there has been a lot of commentary, some of it perhaps impolite, perhaps even insulting, insinuating that he is Zuma’s lapdog. One shouldn’t forget the context here – the position of NDPP became vacant (again) upon the R17-million departure of Mxolisi Nxasana. Abrahams was appointed almost immediately, by a person who has a lot to fear from the person in that position. Context matters.
The problem for Abrahams is that so many South Africans are now so cynical, they are so used to people making promises, justifying their own actions, in some cases even promising to uphold the Constitution, that they just don’t buy it. And don’t complain about cartoonists, they are unfair, but that is the power of satire, you can’t fight against it, you just look foolish.
And in any case, actions speak louder than words, in politics, in the public arena, even in law. And look at the action that was announced by Abrahams, that he was going to appeal the decision to reinstate the charges against Zuma. When what he could have done was to do nothing, knowing that Zuma himself will appeal the case. (Zuma announced his appeal late on Monday – Ed) That would certainly have had the same effect de jure, but been less painful de politico (You’ve just made that up, didn’t you? – Ed).
Interestingly, Abrahams says that he’s going to the Supreme Court of Appeal when there are strong grounds for him to go straight to Constitution Hill. The forgiving part of our soul wants to believe it’s because of his “stated respect” for that court. The weary cynical part believes it’s just to buy even more time.
But that is also not a strategy without risks. As both Constitutional Law Professor Pierre de Vos and Advocate Vuyani Ngalwana SC pointed out on Twitter immediately after the announcement, the limits of interference by a court into the discretion of a prosecutor are pretty much settled law. They point to previous cases where this has been decided. And consider this: the SCA has dealt with case after case about the prosecution of Zuma. From arguments about search warrants, to the preservation of evidence, to whether officials can go to Mauritius, they must be heartily sick of it. And of the NPA, considering how many times they have already reversed its decisions. This means there may well be a strong chance that the court simply refuses to hear the matter, if they believe that it is settled law.
That means that it could, in the end, go straight to the Constitutional Court. If you were Zuma right now, would you take your chances with Chief Justice Mogoeng Mogoeng? He may believe in the power of forgiveness, but he certainly doesn’t believe in the probity of the First Citizen.
In the grounds of the appeal filed by the NPA, the first issue is whether the head of the NPA is not actually the best person to determine whether the actions of people under him were so wrong that the entire prosecution must be cast aside. In other words, that if the NPA misbehaves and someone is prejudiced as a result, then the NPA head can decide that the conduct was wrong, and thus not press ahead with the case. There is, of course, a pretty quick rejoinder to that. That in this case, the prejudice suffered by Zuma was tiny, if in fact he suffered at all. What was recorded on the Zuma Spy Tapes was not a discussion about whether to charge him, it was a discussion about when to charge him. The decision had already been made. Legally speaking (and not politically, because that shouldn’t come into it), he surely suffered not a jot. So then what prejudice did Zuma suffer that means this entire prosecution must be thrown out?
And it’s clear parts of the NPA have different attitudes to this. Abrahams did explain that he did not consult the lead prosecutor in the case, Advocate Billy Downer. Downer said at the time, in 2009, that the prosecution should have continued. When advocates disagree, let a judge sort it out. In this case, at the start of the criminal trial.
The NPA’s second ground is that for a court to tell the NPA to continue with a prosecution actually crosses the line of the separation of powers, that courts shouldn’t tell prosecutors what to do, except for “rare occasions and for compelling reasons”. Well, that surely doesn’t make sense. Imagine a drugs dealer caught on video selling drugs. Imagine the person not being prosecuted, despite a public outcry. Surely a court can intervene if asked. And surely a prosecution involving the sitting president is in fact a “rare circumstance”. Or at least, one would certainly hope so.
The other grounds are essentially variations on the above themes. They are probably important to lawyers, but essentially add a lot more legal Latin to the case.
One point that does carry some weight, and must at least be dealt with, was canvassed by Abrahams during his announcement. He says that this is a case that could have far-reaching consequences for prosecutors, and the limits of their discretion. That surely is an issue that must be dealt with, and with sufficient finality for this not to happen again.
But, to go back to de Vos and Ngalwana: some of this law seems to be settled already.
In an era when “Stalingrad” refers to legal battles and not actual war, when Zuma has used every single manoeuvre in the book (including objecting to the release of recordings of conversations which should aid him in the case rather than hurt him), when he has shown time and time and time again his lack of respect for the spirit of the law, it is hard to see why someone he appointed would behave any differently. Especially when so many of his other appointments have not. DM
Photo: National Director of Public Prosecutions Shaun Abrahams (R) walks past his deputy Adv Nomgcobo Jiba as he leaves at the end of a media briefing in Pretoria, South Africa, May 23, 2016. REUTERS/Siphiwe Sibeko
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