Babalo Ndenze
Political Bureau
PRESIDENT Jacob Zuma has suffered a “political setback” in his fight to prevent criminal charges against him being reinstated, but this could be a lengthy process that could take years, say legal and political analysts.
The Supreme Court of Appeal (SCA) ruled yesterday that the National Prosecuting Authority (NPA) must comply with a previous order, following a DA application, to release the so-called spy tapes within five days.
This would include the recordings as well as other documents dealing with the contents of the recordings that led to criminal charges against Zuma being dropped, shortly before he was sworn in as president in 2009.
But at least one constitutional law expert believes the SCA ruling was a “bit of a red herring” and diverted from the real issue.
“The real issue here is, surely, the reason why that court case even happened was as long as the DA didn’t have information on which the NPA based their decision to withdraw charges (against Zuma), the court couldn’t consider whether those dropping of charges are illegal and therefore unconstitutional,” said constitutional law expert Pierre de Vos.
He said what was going to happen now was for the DA’s lawyers to look through all that evidence “if they get it” and they could decide whether to go further with the case to challenge the dropping of the charges against Zuma.
Asked if Zuma should be worried, De Vos said:
“Yes, because the problem is the dropping of the charges. You can drop charges in terms of the prosecution policy – they (the NPA) didn’t even refer to that policy. Legally speaking that decision is on very shaky ground to drop the charge.”
The Centre for the Study of Democracy director, political analyst Steven Friedman, said Zuma’s detractors should not get excited just yet as it could be a while before any charges were reinstated.
“First of all, the legal issues are obviously that he has the right to appeal to the Constitutional Court. Obviously serious questions need to be asked about whether he is going to do that given that his legal team didn’t put up much of a fight in the SCA. It’s a fair assumption that he will indeed have to hand over the tape at some point or during the next five days, possibly after a Constitutional Court hearing,” said Friedman.
He said he was not surprised that DA leader Helen Zille saw the ruling as a victory.
“It is correct to say that the DA is one step further towards doing what it wants to do which is to overturn the NPA’s decision not to prosecute him,” said Friedman.
He said it was “a political setback” in a sense that it did not help Zuma’s “credibility” to fight a court case “when your lawyers in a sense throw in the towel”.
“I suspect I’m going to start to read some overheated headlines that Zuma is one step further to prosecution. I think it’s important to caution that the prospects that the president will be prosecuted are still very, very slight despite this judgment,” said Friedman.
The SCA order did not only scupper Zuma’s plans to prevent charges against him being reinstated, it was also scathing towards Nomgcobo Jiba, the acting national director of public prosecutions at the time.
The appeal was part of a protracted litigation battle involving Zuma the appellant, the office of the national director of public prosecutions and the first respondent, the DA.
“It is important to note that the (acting NDPP’s) answering affidavit does not adopt a position in relation to the confidentiality of the tapes or transcripts. It resorts to a metaphorical shrugging of the shoulders, and places the reason for its non-compliance with the order of this court in the first appeal at the door of Zuma’s legal representatives, submitting that the present dispute was due to them not being timeously forthcoming with a final position on the disclosure of the tapes or the transcripts,” read the judgment.
DA leader Helen Zille said was a “historic day in our young constitutional democracy”.
ANC spokesman Zizi Kodwa said the ANC noted the ruling. “We trust that today’s outcome will bring the matter closer to finality,” said Kodwa.
ALL THE DATES
June 2005: Then NPA head Vusi Pikoli announces the decision to charge Jacob Zuma with corruption, following the conviction of Schabir Shaik, his former financial adviser. President Thabo Mbeki sacks Zuma as deputy president.
Late in 2007, security services secretly tape phone conversations between Leonard McCarthy and Bulelani Ngcuka about the timing of the charges against Zuma.
December 2007: The Scorpions serve Zuma with an indictment to stand trial in the high court.
September 2008: Judge Chris Nicholson rules that Zuma’s corruption charges are invalid on procedural grounds.
September 2008: Mbeki resigns after his “recall’” by the ANC.
January 2009: Supreme Court of Appeal (SCA) overturns the Nicholson judgment.
April 2009: Acting NDPP boss Mokotedi Mpshe drops charges against Zuma, citing the spy tapes.
May 2009: Zuma inaugurated as the country’s president
June 2010: The DA approaches the North Gauteng High Court to have Mpshe’s decision set aside. The case is dismissed.
2011: The DA appeals to the SCA.
March 2012: The SCA overturns the high court ruling and orders that the NPA hand over some of the spy tapes to the DA.
April 2012: NPA fails to comply with the SCA’s order.
October 2012: Zuma’s legal team files a high court notice disputing the meaning of the SCA order.
August 2013: The North Gauteng High Court orders the NPA to abide by the SCA order within five\[arafah.fakier\]5 days. Zuma’s legal team announces its intention to apply for leave to appeal the high court ruling.
September 2013: Zuma’s legal team is granted leave to appeal the release of the reduced records.
August 2014: Zuma’s lawyer, Kemp J Kemp SC, concedes that he had no argument for not releasing the spy tapes.
Yesterday:(August 28, 2014) The SCA dismissed President Jacob Zuma’s appeal against the release of the so-called spy tapes. – Compiled by Lebogang Seale