Bloemfontein - The Supreme Court of Appeal in Bloemfontein on Thursday, reserved judgement after President Jacob Zuma's lawyers admitted that the quashing of hundreds of criminal charges against him were "irrational".
Shortly before the 2009 polls, after Zuma had won the contest for the leadership of the ruling African National Congress, then acting National Prosecuting Authority (NPA) boss, Mokotedi Mpshe, withdrew 783 charges linked to the multi-million rand 1999 arms deal.
Since then, the Democratic Alliance (DA) has challenged the matter in court. In May last year, the North Gauteng High Court ordered that Zuma must face all the charges. The President then took the matter to the Supreme Court of Appeal.
On Thursday, legal representatives for the NPA and Zuma were at pains as they tried to persuade the court to allow the appeal.
Initially two days had been set aside to hear legal team’s oral representations, but by lunchtime they had wrapped up the matter. But not before the NPA’s legal counsel conceded that Mpshe had “used the wrong power” to withdraw charges against Zuma.
The NPA said it accepted that Mpshe could not rely upon section 179 of the Constitution, as he earlier declared, as this section did not allow the prosecuting authority to review its own decisions.
Advocate Kemp J. Kemp, counsel for Zuma, made the same concession. He also conceded that a decision to withdraw charges, that was based solely on the timing of the indictment, was irrational.
Arguments around what was to happen with regards to the legal proceedings against Zuma, dominated the rest of proceedings.
“If the decision to prosecute stands unchallenged, and the attempt to undo it is found invalid, what is the effect?” asked Justice Mohamed Navsa.
Kemp conceded that the decision to prosecute Zuma then still stands, but pointed out that it didn’t mean that court proceedings against Zuma could simply be continued where it left off. The legal process had to be “kick-started” in some way again by, for instance, the serving of an indictment.
Judgement has been reserved.
The chairman of the DA's federal executive, James Selfe, said from the concessions made by the lawyers and the questions from the bench, it seemed that the court was poised to set aside the decision to scrap Zuma's prosecution.
"This opens the way for Jacob Zuma, finally, to have the day in court that he has been asking for, for the last 15 years. Like any other ordinary citizen, he must face up to the mountain of charges against him."
Selfe said he hoped that the court would in its judgment give clarity as to how the NPA should deal with a revived prosecution.
However, should it be necessary, the DA would take further legal action to ensure that Zuma was charged, raising the spectre of the party taking on the NPA.
"For far too long the ANC political elite has been allowed to escape accountability simply because they are connected. This must not be allowed to stand. All citizens must face up to charges if they are brought against them, and the same must be true for Jacob Zuma," he said.