South Africa

Analysis: State President, Accused No 1, 18 charges, 783 watertight counts

By Marianne Thamm 13 October 2017

Handing down judgment in the Supreme Court of Appeal in Bloemfontein on Friday reinstating 18 charges amounting to 783 counts against President Jacob Zuma, Judge Lorimer Leach expressed the court's doubts that this would be the end of the 15-year saga. President Zuma had every intention, the court said, to continue to use whatever means possible to resist prosecution. In eye of the storm, the President's next move, and the ANC's reaction: will the party stick to its earlier resolution that members facing criminal charges should step aside? By MARIANNE THAMM.

A few hours after the SCA had handed down judgment that the charges must be reinstated against President Jacob Zuma, it was clear that the decision had unleashed an unsettled buzz at the 2nd  ANC Veteran’s League Conference that was set to kick off in Boksburg at 11am on Friday.

Speaking to eNCA’s Xoli Mngami shortly afterwards ANC veteran Zola Skweyiya offered the scathing assessment that the NPA “did not exist” and that President Zuma should immediately step down.

Skweyiya also admitted that the ANC veterans had asked Zuma to step down earlier this year, a fact that ANC spokesperson Zizi Kodwa denied at the time and spun as “fake news” when Daily Maverick reported this.

“How can we go into an election with such a president?” asked Skweyiya on Friday.

Later, ANC Secretary General Gwede Mantashe, preparing to address the veterans instead of Zuma who had been due to speak but was instead on a state visit to Zambia, refused to comment to eNCA while ANC Deputy Secretary-general Jessie Duarte scuttled away as she was approached for comment.

Both the NPA and the ANC issued short statements after the SCA judgment, the NPA saying it would “study the judgement” while the ANC stated the governing party “has full confidence in our judiciary and the options it offers to all aggrieved parties”.

The Presidency issued a statement through Presidential spokesperson Dr Bongani Ngqulunga fulfilling the SCA prediction that Zuma will continue to resist prosecution.

“The effect of the decision is that the only legitimate decision made by the NPA is to prosecute President Zuma. Importantly, it means that the 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 relating thereto,” read the statement.

Ngqulunga continued enigmatically that “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.”

Regardless of the President’s intention to make representations to the NPA, the ANC now finds itself faced with the same dilemma that confronted it in 2008, when it forced President Thabo Mbeki to resign after a judgment by high court justice Chris Nicholson that Mbeki had politically interfered in the prosecution of Zuma.

Nicholson’s judgment paved the way for Zuma to occupy the highest office of the land but it was dismissed in 2009 “with contempt” and as “subversive” by a unanimous SCA bench, led by Judge Louis Harms.

At the time Harms ruled that it would have been “naïve to pretend that we are oblivious to the fact that Nicholson J’s judgment has had far-reaching political consequences and that there may be an attempt to employ this judgment to score political points”.

And while Nicholson had recognised that “political meddling” had not been part of the issue, nevertheless “a substantial part of his judgment dealt with this question; and in the course of this discussion he changed the rules of the game, took his eyes off the ball and red-carded not only players but also spectators,” Harms ruled.

In 2012 at Mangaung, the ANC established an Integrity Committee chaired by veteran Andrew Mlangeni and adopted a resolution that members found guilty of corruption or other criminal charges would be subjected to internal disciplinary processes.

In 2015, at the party’s National General Council, it was agreed that the Integrity Commission should be given greater powers and the authority to take decisions against members not only convicted but also suspected of wrongdoing and harming the party’s image and reputation before handing them over to the NEC. At the time the party’s mid-term review had found that an increasing number of NEC members were facing allegations of corruption yet were refusing to step down.

In October 2016 the Integrity Commission (IC) wrote to the ANCs top six seeking to “raise our concerns regarding the deep sense of crisis, the perceived political vacuum and sense of malaise that has taken root in the ANC” and reminding it of the 4th NGC resolution which “strengthened the mandate of the Integrity Commission to deal with corruption within the ANC”.

“The Commission should get powers to implement decisions and not just recommend to the NEC… The ‘innocent until proven guilty doctrine’ should not apply as this is not a court case or DC process. The IC should pursue the interests of the ANC and ask members to step aside while dealing with their problems, for the sake of the organisation. .. Their determination on cases is final,” the IC wrote in an executive summary.

In the summary the IC called for an early elective conference, as well as the resignation of President Zuma, the ANC “top six” as well as the NEC.

We all know how that went down.

What was good for Mbeki was not good for Zuma.

Judge Mahomed Navsa’s judgment of Friday, which was generally scathing of NPA leadership, past and present, sought to recap around 15 years worth of the sequence of events leading to Friday’s decision to dismiss the NPA and Zuma’s appeal against the High Court ruling that the 18 charges consisting of 783 counts be reinstated.

The judgment on Friday referred specifically to a 2009 memorandum the NPA’s Bumiputera team tasked with prosecuting Zuma had sent to then acting NPA head Mokotedi Mpshe, urging him to reject representations made on Zuma’s behalf and which Judge Navsa said were worth repeating.

“Given the importance for the present decision of the 2007 decision to prosecute, the Bumiputera team re-examined our notes, diaries and memoranda concerning the events of November and December 2007. Having done so, we are satisfied that the position is quite clear,” the team wrote.

It added that “all the members of the Bumiputera team and all the NPA top management to whom our recommendations were presented, were unanimous that Mr Zuma should be charged. The consensus was also that racketeering charges in terms of POCA should be included. The consensus included the Acting NDPP. Indeed, on 14 December 2007, [Mr] Mpshe signed the POCA authorization for the racketeering charges.The recommendations, discussions, motivations and decisions were founded on the merits of the evidence.”

The conduct of Advocate Willie Hofmeyr, then Deputy National Director of Public Prosecutions who was, Judge Navsa, said “the most vociferous of those within in the NPA management in advancing the argument that the prosecution should be discontinued…and was the principal deponent in opposing the DA’s application” was highlighted again the Friday’s judgment.

“The case sought to be made out by him was that it was Mr McCarthy that had influenced Mr Mpshe in respect of the timing of the service of the indictment. The timing of the service of the indictment was in relation to the African National Congress’ (ANC) national elective conference to be held from 16-20 December 2007 at Polokwane,” said Judge Navsa.

Hofmeyr, the court found, “was intent on imputing the decision to prosecute Mr Zuma to Mr McCarthy. He sought to dispel as untrue the statement made on behalf of the NPA in an affidavit in other litigation, that Mr Mpshe had made the decision to prosecute.”

The court on Friday further castigated Hofmeyr’s conduct stating, “He is an experienced litigator who should know better than to present the case in the manner described above. Professedly advancing the cause of the NPA’s independence and integrity, he achieved exactly the opposite. One now has a better appreciation of the reluctance of counsel on behalf of the NPA to be associated with the affidavits filed on its behalf.”

Life for Hofmeyr has, of course, moved on since then. He later found himself falling foul of new NPA head Shaun Abrahams after accusing his boss of protecting NPA Zuma ally Nomgcobo Jiba and his decision to drop criminal charges against her. Hofmeyr was later demoted by Abrahams from head of the Asset Forfeiture Unit to head the legal affairs division.

In 2016 during his interview applying for the job of Public Protector Hofmeyer said he now felt underutilised by the NPA and only worked three hours a day in his new position.

In his conclusion to Friday’s judgement Judge Navsa stated that “The problems for the NPA and for Mr Zuma go way beyond those relating to the concessions made [that Mpshe’s decision to withdraw charges had been irrational]”.

He said it was unsettling that different law enforcement agencies of government appeared to be spying upon each other.

“Insofar as the tape recordings of the telephone conversations are concerned, other than the hearsay evidence of the communications between the members of the NIA and the NPA, we have no admissible substantiation concerning the authenticity or accuracy of the recordings. The alleged judge’s certificate, which would have indicated the breadth of the authorisation to record telephone conversations, was not made available to the court below or to us.”

Judge Navsa said there was no indication of how the recordings came to be in the possession of Zuma’s legal team and warned that there were heavy penalties prescribed in relation to contraventions of law regarding the interception of private conversations.

“The question of the admissibility of the recordings as evidence and the issues referred to above was never seriously addressed by the NPA. It ought to have been an issue to which the NPA paid greater and focused attention. Instead, the NPA allowed itself to be cowed into submission by the threat of the use of the recordings, the legality of the possession of which is doubtful.”

The exclusion of the prosecution team from the process leading up to the decision to discontinue the prosecution, especially the final deliberations that took place on 1 April 2009, was in itself irrational said Judge Navsa:

“The compelling conclusion is that this exclusion was deliberate. The prosecution team’s subsequent memorandum protesting their exclusion is understandable. They were senior litigators steeped in the case, acquainted with the legal issues and had a critically important contribution to make regarding the ultimate decision to terminate the prosecution. They had invested a great deal of time and resources in gathering evidence and building a case that management in the NPA accepted was a strong one. The memorandum pointed out that the views of the two outside eminent senior counsel, who had been advising the NPA, were inexplicably also not solicited.”

In light of this, said Judge Navsa, “it beggars belief that the present regime at the NPA, on its own version of events, saw fit to defend Mr Mpshe’s decision as being rational. For all these reasons I can find no fault with the reasoning and conclusions of the court below [the High Court] that the decision to discontinue the prosecution was irrational and liable to be set aside. A question one might rightly ask is why it took so long to come to the realisation at the eleventh hour that the case for both the NPA and President Zuma had no merit.”

Shaun Abrahams and President Jacob Zuma now finally find themselves between a rock and the full might of the law. The announcement that the President will seek to make representations is the last and desperate step in his Stalingrad Strategy to avoid ever going to court.

In the meantime, the ANC itself will have to decide on Zuma’s fate in terms of its own resolutions.

Friday’s judgment weakens Zuma’s political position, although those in the NEC who stand to lose the most if he ends up having to step down, are bound to fight to the end, perhaps even killing the ANC in the process. It will also finally force  Abraham’s hand. Will he obey the law or will he still continue to protect the president?

In the meantime, revelations in the #Guptaleaks and the President’s role facilitating massive corruption have far eclipsed the gravity of the 18 charges and 783 counts relating to Zuma’s relationship with convicted fraudster, Shabir Shaik.

However, South Africans should at least spend the weekend celebrating this rather large victory which has been a long time coming. DM

Photo: President Jacob Zuma is seen during a meeting with members of the SA Editors’ Forum at the presidential guesthouse in Pretoria on Friday, 20 February 2015. Picture: Werner Beukes/SAPA

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