On April 6, 2009, one month before the national elections of that year, the then national director of public prosecutions, Mokotedi Mpshe, decided to drop more than 700 charges of fraud and money laundering against Jacob Zuma, in a case that had been described as the best prepared criminal case in South Africa’s history.
The ostensible reason for this was that the National Prosecuting Authority (NPA) became aware, from transcriptions of intercepted conversations, that there had been some alleged manipulation about the timing of the formal laying of these charges.
There was immediate speculation that there was another reason: Zuma was, after all, the leader of the ANC and the person most likely to become the president after the election.
The question on everyone’s lips was: Had Mpshe taken this decision on legal grounds, or was there a political motive for dropping the charges?
The DA decided to take this matter on review, and the case was initially heard in June 2010 in the Pretoria High Court.
The lawyers for the NPA and for Zuma argued that (a) the DA did not have the legal status to bring the case; and (b) that a decision to drop charges was not reviewable, and that, as a consequence, the NPA did not have to provide the “record of decision”.
Zuma’s lawyer went further: he argued that, because Zuma had made representations to the NPA regarding dropping these charges, the record of the decision to drop the charges must be privileged and, therefore, confidential.
The Pretoria High Court found in favour of the NPA and Zuma, but the DA took the matter on appeal to the Supreme Court of Appeal, which ruled in March that the DA did have legal standing and that a decision to discontinue a prosecution was reviewable by a court.
The appeal court ordered the NPA to hand over within 14 days the “reduced record of decision” – that is, all documents, memorandums or transcripts that related to the decision to drop the charges, less those documents that contained Zuma’s representations or the response of the NPA to those representations.
Since the NPA obtained the tapes of the intercepted conversations (supposedly central to its decision to drop the charges) not from Zuma or his lawyers, but independently from the National Intelligence Agency, there can be no way that these tapes form part of the representations made by Zuma, and cannot be regarded as privileged or confidential.
The appeal court made its ruling in March. It is now November.
The NPA has invented every type of excuse not to hand over the reduced record: first, it was taking time to transcribe the tapes; then it was that the NPA needed to consult Zuma’s lawyers as to whether they formed part of the representations.
Now both the NPA and Zuma say that the court must decide whether or not to hand over the tapes.
This is plainly contempt of court.
And when the president (through his lawyers) and an institution central to the administration of justice (the NPA) deliberately ignore a court order, we have crossed a very dangerous threshold.
The constitution enjoins the president to respect and uphold judgments of the courts. He has failed to do so, and has thus undermined the constitution.
The DA has accordingly been forced to launch another application to court to compel the NPA and the president to comply with the appeal court order.
The case will be heard later this year or early next year, and we are confident that we will get the reduced record, including the tapes.
That will pave the way for the DA to do what it wanted to do in 2009: to ask the court to determine whether the decision to drop the charges was rational and, therefore, lawful.
Many people ask us whether this is worth the trouble.
They say that this was a long time ago, and that Zuma is now the president. Our answer is emphatic: if anything is worth pursuing, this is.
First, it is because the constitution states that everyone is equal before the law, even the president.
But second, it is because we need to establish the principle that, if the NPA takes a decision to drop charges, it does so without fear or favour, and for reasons that are based on the merits of the law, rather than because of political considerations.
If this is not emphatically established, the rule of law will have been fatally compromised.