President Jacob Zuma addresses business leaders from the BRICS Nations and invited captains of industry of the African Continent at the first meeting of the BRICS Business Council held at the Sandton Convention Centre, Johannesburg. 20/08/2013

Johannesburg - 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, legal and political analysts say.

The Supreme Court of Appeal (SCA) ruled on Thursday 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.

Pierre de Vos, a constitutional law expert, said the court could not consider whether the dropping of charges was illegal and therefore unconstitutional “as long as the DA didn’t have information on which the NPA based their decision to withdraw charges (against Zuma)”.

The DA’s lawyers will have to look through all that evidence “if they get it”, he said. Then they will be in a position to decide whether to proceed with the case to challenge the dropping of the charges against Zuma.

Asked if Zuma should be worried, De Vos said “Yes”.

“Yes, because the problem is the dropping of the charges. You can drop charges in terms of the prosecution policy; they (NPA) didn’t even refer to that policy.

“Legally speaking, that decision (to drop the charges) is on shaky ground,” De Vos added.

Centre for the Study of Democracy director and 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.

“Firstly, the legal issues are 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 fair to assume that he will have to hand over the tape at some point or during the next five days, possibly after a Constitutional Court hearing,” Friedman said.

He wasn’t surprised that DA leader Helen Zille regarded the ruling as a victory.

“It is correct to say that the DA is a step further towards doing what it wants to do, which is to overturn the NPA’s decision not to prosecute Zuma.

“I think she and those who support this ought to be aware that it’s a small step.

“There’s a long way to go in this process if that decision is ever overturned,” Friedman added.

He said it was a political setback for Zuma in a sense that it does not help his credibility to fight a court case “when your lawyers in a sense throw in the towel”.

“I think it’s important to caution that the prospects that the president will be prosecuted are still slight despite this judgment,” Friedman pointed out.

The SCA order didn’t 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 judgment said: “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 Mr Zuma’s legal representatives, submitting that the present dispute was due to them not being timeously forthcoming on disclosure of the tapes or the transcripts.”


Zille said that Thursday was a “historic day in our young constitutional democracy”.

“Today we can feel reassured that the institutions tasked to protect our democracy are very much alive and well.”

ANC spokesman Zizi Kodwa said the ANC had noted the appeal court’s ruling.

“We trust that today’s outcome will bring the matter closer to finality,” he said.

Spy tapes timeline:

June 2005: Then NPA head Vusi Pikoli announces a decision to charge Jacob Zuma with corruption following the conviction of Schabir Shaik for bribing Zuma. Then-president Thabo Mbeki sacks Zuma as deputy president.

Late in 2007: Security services secretly tap phone conversations between the Scorpions’ Leonard McCarthy and NDPP 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 Judge Nicholson’s ruling.

April 2009: Acting NDPP boss Mokotedi Mpshe drops charges against Zuma, citing the spy tapes.

May 2009: Zuma is inaugurated as the country’s president.

June 2010: The DA approaches the North Gauteng High Court in Pretoria 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: The 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 days. Zuma’s legal team announces its intention to apply for leave to appeal against the high court ruling.

September 2013: Zuma’s legal team is granted leave to appeal against 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.

August 28, 2014: SCA dismisses Zuma’s appeal against the release of the tapes. - Compiled by Lebogang Seale

Political Bureau