Polokwane conference‚ timing bad reasons for NPA to drop Zuma’s 783 charges: SCA

The failure of the motion of no confidence raised in the ANC's national executive committee against President Jacob Zuma should not have caught anyone by surprise, says the writer. Picture: JACKIE CLAUSEN
The failure of the motion of no confidence raised in the ANC's national executive committee against President Jacob Zuma should not have caught anyone by surprise, says the writer. Picture: JACKIE CLAUSEN

The Pretoria high court was correct in its finding last year that the National Prosecuting Authority’s (NPA) decision to drop charges against President Jacob Zuma was irrational‚ the Supreme Court Appeal (SCA) ruled on Friday.

The SCA dismissed an appeal by Zuma and the NPA to have the 2016 high court’s decision set aside.

In 2009‚ the former acting national director of public prosecutions‚ Mokotedi Mpshe‚ took a decision to drop 783 counts of fraud‚ corruption and racketeering against Zuma.

In reaching his decision‚ Mpshe had relied on intercepted conversations between his predecessor‚ Bulelani Ngcuka‚ and Leonard McCarthy‚ head of the now defunct Scorpions.

The exchange between Ngcuka and McCarthy – popularly call the “Spy Tapes” – occurred shortly before the ANC’s Polokwane conference in December 2007‚ when Zuma was elected the new leader of the African National Congress.

The appeal court found that Mpshe had ignored a judgment made by the SCA in 2009 in another matter involving the president that a bad motive in prosecuting someone does not destroy a good case.

The judgment of Judge of Appeal Louis Harms overturned a Pietermaritzburg high court judgment in 2008‚ which declared invalid the NPA decision taken in December 2007 to charge Zuma.

“A prosecution brought for an improper purpose‚ so said the court (SCA)‚ is only wrongful if‚ in addition‚ reasonable and probable grounds for prosecuting are absent‚” said Judge of Appeal Mahomed Navsa.

Four other appeal court judges‚ Azhar Cachalia‚ Lebotsang Bosielo‚ Eric Leach and Zukisa Tshiqi‚ concurred in Navsa’s judgment.

“In the present case‚ on the NPA’s own version‚ the case against Mr Zuma is a strong one.

“Once it is accepted that the motive for prosecution is irrelevant where the merits of the case against an accused are good‚ the motive for the timing of an indictment to begin the prosecution must equally be so.”

Navsa also said the exclusion of the entire Zuma prosecution team from the process leading up to Mpshe’s decision to discontinue the prosecution was irrational.

Mpshe took the decision to discontinue the prosecution team in the final deliberations that took place on April 1 2009.

Other people in the prosecution team included senior prosecutors Willie Hofmeyr and Billy Downer.

“The compelling conclusion is that this exclusion was deliberate. The prosecution team’s subsequent memorandum protesting their exclusion is understandable‚” Navsa said.

Navsa said the prosecution team comprised of senior litigators steeped in the case‚ acquainted with the case and had a critically important contribution to make regarding the ultimate decision to terminate the prosecution.

Navsa said in claiming that the timing of the service of the indictment after the Polokwane conference was influenced by McCarthy and was an abuse of process which persuaded him to drop the charges‚ Mpshe had “failed to consider a material fact‚ namely‚ that the indictment would in any event not have been ready for service before the Polokwane conference …”.

Navsa said there had been errors in the indictment that required correction and could have only been finalised on December 24 2007‚ after the conclusion of the ANC elective conference.

“This is a consideration that was material to arriving at a rational conclusion. The importance of this is that whatever the motivations of Mr McCarthy may have been in delaying the service of the indictment‚ the indictment was not ready to be served before the conference‚” Navsa said.

“For all these reasons I can find no fault with the reasoning and conclusions of the court below [the high court in Pretoria] that the decision to discontinue the prosecution was irrational and liable to be set aside‚” Navsa said.

The NPA said it would not‚ at this stage‚ comment on the SCA judgment.

“Once the leadership has considered the judgment‚ we shall engage‚” said NPA spokesman Luvuyo Mfaku.


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