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A judicial review of the National Prosecuting Authority’s 2009 decision to drop corruption charges against President Jacob Zuma will go ahead, after both Zuma and the NPA announced on Thursday that they would not challenge a Supreme Court of Appeal (SCA) judgment ordering the review.
Last month, the SCA, overturning an earlier decision by the Pretoria High Court, upheld the DA’s request for a review of the decision taken in 2009 by the then acting national director of public prosecutions, Mokotedi Mpshe, to drop the case against Zuma. This decision cleared the way for Zuma to become president a few months later.
The SCA instructed the NPA to – within 14 days – provide a “reduced record” of the evidence that was before Mpshe when he took his decision, and any other evidence that may have influenced it.
This would exclude confidential representations Zuma made to the NPA during the course of its investigation into his financial affairs following the earlier fraud conviction of his former financial adviser, Schabir Shaik.
Presidential spokesman Mac Maharaj told The Star on Thursday that Zuma had decided “independently (of the NPA) not to take the matter on appeal”.
He said the matters raised during the course of the DA’s case before the SCA were of a “technical nature” and that the “substantive issues will now be fully ventilated” before the Pretoria High Court, where the judicial review would be conducted.
He said Zuma was confident that the NPA’s 2009 decision would be vindicated in the end.
NPA spokesman Mthunzi Mhaga said yesterday that “after considering the legal issues, the NPA has decided that it will not appeal… to the Constitutional Court and that it will follow the process set out in the (SCA) judgment”.
He said an appeal “would not be in the interests of justice… at this stage” as it would result in “piecemeal litigation and unnecessary delays”.
However, Mhaga emphasised that the prosecuting service stood by the “correct decision” taken by Mpshe in 2009 and that it would continue to defend it in court.
“Once there is a final court ruling on the merits, the NPA will respect the outcome, as it always does,” he added.
DA federal chairman James Selfe has welcomed the NPA’s decision.
“Depending on the nature of the documentation we receive, we will brief our legal team to proceed with the substantive review of this (Mpshe’s) decision, with the objective of determining before a court of law whether the decision to discontinue the prosecution against Jacob Zuma was based on rational, defensible legal grounds, or whether it was in fact a political decision,” said Selfe.
Mhaga said the NPA would first provide Zuma’s legal team with a copy of the reduced record “to indicate whether they have an objection to any of the material being disclosed on the grounds that it is privileged” before filing these records in court.
The ANC reacted angrily to the SCA judgment last month and accused the DA of using the courts to “undermine and paralyse” the government.
At the time, the ANC also said the SCA judgment “should not go unchallenged” as it “might have huge implications for effective governance, including current and future decisions of any organ of state”.
The party complained that the appeal court had in effect given political parties blanket permission to use the courts to review any state decisions. This would open the floodgates for vexatious litigation against the state by political parties and others, the ANC claimed at the time.
However, the ruling party has since softened its stance. ANC national spokesman Jackson Mthembu said on Thursday that despite the party having its own concerns about the SCA ruling, it would accept the NPA’s decision not to appeal.