It will not be in the best interests of the administration of justice to reinstate charges against President Jacob Zuma, says the writer. Picture: Reuters
The judgment by the Supreme Court (SCA) in Bloemfontein in dismissing an appeal application by the National Prosecuting Authority (NPA) and President Jacob Zuma has clarified, in my legal analysis, two crucial constitutional and legal principles, namely the unshaken prosecutorial independence of the NPA and the effect of the previous judgment by a lower court - a division of the High Court of South Africa located in Vermeulen Street, Pretoria.

The SCA corrected an apparent judicial frolic by the lower court that in setting aside then acting prosecutions boss Mokotedi Mpshe’s decision to withdraw Zuma’s corruption, fraud and racketeering charges as “irrational”, the charges as originally indicted were automatically reinstated.

In other words, the Supreme Court has upheld the prosecutorial independence of the NPA and thus affording space to the National Director of Public Prosecutions (NDPP), Advocate Shaun Abrahams, to exercise their discretion, which ought to be in a rational manner to correct Mpshe’s decision that is now accepted and confirmed as irrational.

It should always be remembered that the court’s important task is interpretation, development and application of the law, not only to clarify and resolve an existing legal matter but to provide certainty, clarity and consistency in the legal system for tomorrow and the future as a safeguard to the judicial integrity of our jurisprudence.

Moreover, judges at upper courts are in a sense exercising a “night watchman” role of protecting the integrity of our law in terms of what the constitution provides and the effect given to the constitutional provisions by the statutes.

While judges are tasked to exercise their judicial powers in adjudication of cases diligently, their most important duty is independently to ensure the deepening of the culture of human rights as set out in a Bill of Rights in Chapter 2 of our supreme law.

That judicial duty includes, and is certainly not confined to, the rights of those accused or due to be accused of a crime or crimes in terms of Sections 34 and 35, which respectively affords rights on access to courts and the set of rights available to any accused person.

Zuma, as a citizen, ought to enjoy same rights as any, regardless of his status. After all, equality before the law is one cornerstone value of the constitution entrenched in the Equality Clause in Section 9.

Also read: What the NPA's decision to hold off on charging Zuma means

Against this brief background I would like to venture my own legal opinion on the legal implications of the SCA judgment and probable scenarios:

1. The NPA head, Shaun Abrahams, should be given space in terms of the constitution and an empowering legislation, which governs the procedural and substantive powers of the NDPP on all prosecutorial decisions, to apply his mind on the content of the SCA judgment without political pressure from any quarter. The constitution and the NPA Act clearly empowers the NDPP to make a determination on whether or not to prosecute any person.

This they must do “without fear, favour or prejudice”. The hastiness of the DA in publicly stating, through its leader Mmusi Maimane, that they were to dispatch a letter to Abrahams to demand he reinstates charges against Zuma is not only interfering in the operation of the NPA but it is an act of double standard on DA’s part.

It is the same DA and its political cohorts which launched a relentless campaign against Abrahams demanding he should abandon the prosecution of Pravin Gordhan. Was that not political interference in the operation of the NPA?

2. I argued before and I repeat that the legal and constitutional rights of President Zuma have been violated since 2005 when he was tried and sentenced by innuendo when Schabir Shaik was convicted by Judge Hilary Squires. Zuma was fired by President Thabo Mbeki on the basis of a judgment on Shaik where Zuma was not an accused person.

This dismissal is, sui generis, a gross assault on the dignity and honour of Zuma, when no case was ever made out against him to justify his removal from office at the time.

My argument is that Zuma’s constitutional rights in terms of Section 35 of the constitution were infringed as he was not afforded a fair and speedy trial after the 2008 indictment which led to a series of NPA delays and unjustified requests for trial postponements.

It should be remembered that the trial, which was in the Pietermaritzburg High Court, was postponed and was eventually struck off the roll by then Judge President of the Natal Provincial Division, Judge Vuka Tshabalala. This factor alone (over 10 years of failure by the State to prosecute and finalise a case against Zuma) constitutes an unpardonable violation which justifies serious reflection.

Read more: Schabir Shaik on Zuma: Of course, I will testify

Given this violation, I ask: Is it in the interests of the administration of justice to reopen a trial against Zuma? The NPA, at no stage, have shown readiness to prosecute Zuma.

I ask another question: Is the NPA ready now and what is indicative of that readiness?

3. There are other substantive impacts which come to my mind as to whether it is in the best interests of the administration of justice to reinstate charges against Zuma.

The first is the conclusion of the Seriti Commission of Inquiry which did not make any finding on corruption involving the government and its leaders on an arms deal.

Shaik’s prosecution and subsequent conviction arose from the arms deal allegations.

The second factor is a KPMG “report” which appears to be the basis of the “783 charges” against Zuma.

The credibility of this “report” has inevitably become a legal and political fascination in the past few weeks, making it an important source to consider when the NPA applies its mind on the way forward on whether or not to prosecute Zuma.

The Seriti Commission report, which has not been judicially reviewed, remains an authority, capable of being referred to in litigation. It should be.

4. The president’s legal team should consider, in terms of the constitution and NPA legislation, read with the rules of administrative justice contained in administrative law, making representations to the NDPP on the basis of the SCA judgment as a matter of urgency. In my opinion, it will not be in the best interests of the administration of justice to reinstate charges against the president.

It would be like trying him twice for the same crime, contrary to the principle of legality as enunciated and established in our common law and criminal law.

* Kgomo is a political analyst. 

** The views expressed here are not necessarily those of Independent Media.

The Sunday Independent