Pretoria – It was vital for then acting National Director of Public Prosecutions (NDPP) Mokotedi Mpshe to drop the raft of charges against President Jacob Zuma in 2009 once he realised the prosecution process had been tainted, the High Court in Pretoria heard on Tuesday.
“At the end of the day, we know that this is the discretion, which the Constitution and the legislation repose in the national director (of the NPA). It is his discretion and courts will not interfere unless there are exceptional circumstances to do so,” NPA counsel Hilton Epstein SC told a full bench of judges.
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Epstein said it was more important to protect the reputation of the NPA than to pursue one individual.
“Unless the public repose trust in the NPA, then the democracy in our country fails. There is nothing more important. You can’t have a constitutional democracy unless you have an independent prosecutorial authority,” said Epstein.
“One has to ask the question, as Mpshe did: ‘Is it more important to pursue the conviction of one person, put out of your mind that this is the President, even when the merits may appear to be good or is it rather more important to assure the public that at any cost, the prosecutorial authority will not be impeded, affected and influenced by outsiders and will always remain independent?'“
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He said in courts, critical evidence could be inadmissible even though it is critical.
“It’s like the judiciary, there may be cases where your lordships have and will hear strong evidence against an accused, but it is inadmissible. It is hearsay. You have to ignore it and that person has to walk free,” said Epstein.
“Those are the rules we abide by. Those rules provide justice in the end. We cannot allow the pursuit of one individual to trump the independence we require of the NPA.”
The three judges of the North Gauteng High Court, led by deputy judge president Aubrey Ledwaba, are hearing the Democratic Alliance’s application to set aside the NPA’s decision in April 2009 to drop 738 charges of fraud, corruption and racketeering against Zuma.
Advocate Sean Rosenberg, for the Democratic Alliance (DA), told the court on Tuesday that Mpshe’s decision to discontinue the prosecution of President Zuma was unwarranted.
“The decision was fundamentally irrational,” said Rosenberg.
The DA has approached the courts, as part of a bid to have fraud and corruption charges reinstated against Zuma.
The charges stemmed from the country’s 1999 arms deal and the decision by then acting NPA head Mpshe to withdraw the case, paving the way for Zuma’s election as president the following month.
The DA went to court soon after, but the actual review has taken more than six years as a result of a lengthy case within a case to secure the release of the so-called spytapes – privately recorded of phone calls Mpshe said indicated that the timing of the charges was manipulated by backers of former president Thabo Mbeki.
African News Agency
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