Shaun Abrahams, head of the country’s beleaguered National Prosecution Authority will find himself in the spotlight on Friday when the Supreme Court of Appeal in Bloemfontein hands down judgment in President Jacob Zuma and the NPA’s appeal against a High Court order for the reinstatement of 783 charges of fraud, corruption and racketeering against the President. It is clear from September representations made to the SCA that Abrahams is a worried man. Will he finally find his spine and honour his oath of office and the rule of law? By MARIANNE THAMM.
Perhaps it was pure coincidence that a day before the Supreme Court of Appeal in Bloemfontein was set to pronounce on the reinstatement of 783 charges against President Jacob Zuma, Judge Billy Mothle, ruling in the North Gauteng High Court that anti-apartheid activist Ahmed Timol did not commit suicide in 1971 but was murdered by the security police, referred specifically to the duty of prosecutors and lawyers to respect their oath of office.
Judge Mothle ended his judgment with the caution:
“Every professional lawyer and public official survives on integrity. Magistrates and prosecutors are lawyers participating in the administration of justice and are expected to discharge their functions in terms of the oath they have sworn to uphold. For all public office-bearers of the state an oath is sacrosanct.”
It took 45 years for the wheels of justice to grind in the scandalous cover-up of the murder of Ahmed Timol. And it was the public officials who gave evidence at the 1972 inquest which made the fake suicide finding who forfeited their integrity, independence and honesty in the service of those in high office who sought to hide their heinous crime.
Echoes of Judge Mothle’s sentiments will be present during and after the Supreme Court of Appeal judgment, written by presiding SCA judge Mahomed Navsa and to be delivered by Justice Lorimer Leach at 09:30 in Court A on Friday in the matter between the DA and President Jacob Zuma to set aside a 2016 High Court ruling that Zuma should face 783 charges of fraud, corruption and racketeering.
It has taken almost 15 years and countless costly court hearings for the matter to finally reach this fork in the road just as President Jacob Zuma’s term of office is nearing its inevitable disastrous end.
Zuma’s Stalingrad strategy, his attempt to use every legal means at his disposal to postpone his trial, is almost exhausted. Along the way he has had several loyal helpers, including most recently, Shaun Abrahams.
Both Zuma and the NPA sought to appeal the ruling by the High Court but on 14 September Zuma’s legal representative Kemp J Kemp made the surprise announcement to the SCA that his client conceded that the 2009 decision by former acting head of the NPA, Mokotedi Mpshe, to drop the charges had been an irrational one. Kemp added that Zuma would seek to make fresh representations to the NPA before any decision to recharge him is taken.
The NPA too would like the decision as to whether to recharge Zuma to revert to Abrahams; however, Judge Azhar Cachalia remarked last month that his understanding was that Abrahams would be bound by the decision of his predecessor and that Zuma had already made representations which were rejected in 2009 when the decision was taken to prosecute him.
“If Mr Abrahams is concerned that he has to reapply his mind afresh, we will be here nine years later,” warned Judge Cachalia.
There are two possible outcomes on Friday. Either the court will set aside Zuma and the NPA’s appeal and the president will have to face the charges, or he will finally be let off the hook.
Should the court rule that Zuma must face the charges, his legal team will most certainly seek to delay the process further by approaching the Constitutional Cour; however, it is unlikely this approach will succeed. The ConCourt in 2016 refused a bid by the NPA to appeal the High Court ruling to reinstate the charges as the matter was pending at the SCA.
Last month advocate Hilton Epstein, representing the NPA, revealed to the court that Abrahams was concerned by what the outcome would mean for him. Epstein asked the court “if the decision [to drop charges against Zuma] is set aside, what does [Abrahams] do?”.
To which Judge Navsa replied, “You have a decision to prosecute which has thus far been unchallenged. All that remains is that the decision to prosecute is reinstated.”
While Abrahams, making a rather grandiose speech televised live during his formal introduction in July 2015 (apart from pointing out that the NPA’s Facebook page enjoyed over 18,000 hits since his appointment rather than the usual meagre 3,000), went to great lengths to point out that he would be delivering “justice to the people of this country without fear or favour”.
Prosecutors, said Abrahams then, played a crucial role as “cardinal gatekeepers of the Criminal Justice System”.
Prosecutors, added Abrahams, needed to be bound by the Constitution and the Rule of Law and guided by a code of conduct and ethics.
But Abrahams’ speech in 2017, in light of the NPA’s dodgy track record so far, perhaps holds a different meaning in retrospect.
“Who do we prosecute, when do we prosecute on what charges? Is there sufficient reliable and admissible evidence?” Abrahams asked no one in particular.
Of course, almost 14 months later it was Abrahams who announced the withdrawal of charges of fraud against former minister of finance Pravin Gordhan, former deputy SARS Commissioner Ivan Pillay and former commissioner Oupa Magashula. And in that case it was found that the NPA did not do enough to gather sufficient, reliable and admissible evidence in the form of the exculpatory Symington memorandum.
By then the damage that the hounding of Gordhan and others by the Hawks and the NPA had wreaked had rippled through the heart of the ANC and South Africa. We are still reeling in the aftershock of this and the mounting evidence of corruption of a gargantuan proportion, as revealed in the #GuptaLeaks.
But back in July 2015 a chipper Abrahams may inadvertently have hinted at or maybe was unconsciously thinking of the “spy tapes” when he remarked that prosecutors should “refuse to make use of evidence obtained through unlawful means and which constitutes the violation of a suspect’s fundamental human rights and bringing the perpetrators of such abuse to justice”.
It was just a line in the ton of verbiage that day but might he have been referring to President Zuma as the “suspect”?
Abrahams added, prophetically perhaps, that “prosecutorial discretion has an impact on the criminal justice system in terms of its efficiency and is capable of destroying people’s lives, people’s careers and of course people’s reputations that they have built up for many, many, many years.”
Indeed – ask Pravin Gordhan.
Abrahams warned that day against prosecutors suffering from “tunnel vision” and “confirmation bias even when confronted with evidence to the contrary”.
“Tunnel vision is particularly dangerous when prosecutorial theory is wrong and the defendant is in fact innocent.”
Back in 2015 Abrahams was at pains to point out that “we are lawyers, officers of the court, we are prosecutors, we are not politicians. Under my leadership there is just one camp, the NPA camp guided by the Constitution and the Rule of Law and the integrity of the office we hold… I can assure you I do not intend to use my powers to protect anybody.”
In September the DA’s James Selfe, after President Zuma’s legal team had made the concession at the SCA, said that there was still a risk that Abrahams would not deal with Zuma’s case impartially.
“The court was alive to that danger and that is why I think Justice Navsa made several references to the need to introduce something into the judgment that might give direction to how this case needs to be handled going forward.”
By Friday evening the country, President Zuma and Shaun Abrahams will learn whether Zuma will finally and officially be declared a suspect. The long road then will begin towards finding closure to this deeply destructive Zuma decade. If Abrahams does not have the guts to act, the court and the law will force him to do so one way or another.
As in the shameful case of Ahmed Timol, the wheels of justice might grind slowly – but they do grind. DM
Photo: A file picture dated 04 November 2016 shows South African National Director of Public Prosecutions (NDPP) Advocate Shaun Abrahams as he reacts during a briefing to the Portfolio Committee on Justice and Correctional Services in parliament, Cape Town, South Africa. EPA/NIC BOTHMA
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