If the National Prosecuting Authority (NPA) decides not to charge Mr Jacob Zuma, they will obviously have a lot of explaining to do. But what plausible reasons could the NPA possibly provide to justify such a decision? There seems to be at least three possible ways for the NPA to justify its decision if it decides to go that rout.
First, the NPA can argue that after taking representations from Mr Zuma and his lawyers it has come to the conclusion that it does not have a winnable case against him. This will be a difficult case to make. The State’s own sworn statements to the Constitutional Court in the appeal against the Harms judgment seems to suggest that the case is indeed winnable. In an affidavit filed at the Constitutional Court, Scorpions investigator Johan du Plooy stated that:
The accumulation of all the new evidence obtained as a result of the 2005 searches (on Zuma and his lawyers’ and associates’ homes and offices) and the further investigation pursuant to the new documents and perspectives, together with the consequent re-analysis of the old documents and evidence, provides a firm basis for the institution of a prosecution.
If the NPA now changes its story it would mean either that it was lying to the Constitutional Court or that is lying now to the public. Moreover, the lawyers who investigated the matter initially recommended that Mr Zuma be prosecuted because there was a winnable case against him – only to be overruled by Bulelani Ngcuka. Subsequently two National Directors have also concluded that there was a winnable case.
The NPA will therefore have to show that Mr Zuma had provided them with new information that cast doubt on his intention to be corrupt. This is because the main legal issue in a Zuma prosecution will be whether he accepted all this money from Shaik and the arms company and then did favours for them with the intention to be corrupt. I am at a loss to come up with any information that would so dramatically change the legal assessment of so many lawyers over so many years as to warrant a decision that the case has become unwinnable because the state would not be able to prove Mr Zuma’s corrupt intention.
Second, the NPA can argue that it was not in the public interest to proceed with charges against Mr Zuma. The prosecuting policy states that once a prosecutor is satisfied that there is sufficient evidence to provide a reasonable
prospect of a conviction, a prosecution should normally follow, “unless public interest demands otherwise”.
By the way, the prosecuting policy does not mention the national interest in connection with non-apartheid era crimes, so the NPA would not be able to argue that it was not in the national interest to prosecute Mr Zuma because the economy would implode or because Mr Zuma’s supporters will make the country ungovernable. Besides, it would be untenable for an individual to escape prosecution because his supporters are threatening violence as this would completely undermine respect for the Rule of Law and would amount to blackmail of the criminal justice system.
(That is also why the firing of Vusi Pikoli on the basis that he disregarded national security issues and was thus no longer a fit and proper person, seems to me to be clearly illegal. The prosecution policy does not require the NDPP to consider national security or the national interest before proceeding with arrests and prosecution.)
The prosecution policy states that when deciding whether it is in the public interest to prosecute, the NPA should consider several factors. It will have to look at the nature and seriousness of the offense and its prevalence in society and should ask what impact this kind of offense has on society and the economy. As corruption is a cancer that is clearly gaining ground in South Africa, and as this was confirmed by several court judgments, this would strongly suggest that charges should be pursued vigorously.
The interest of the victims and the broader community should also be taken into account and the need for individual and general deterrence, and the necessity of maintaining public confidence in the criminal justice system must be considered. Once again, the problem of increased corruption in our society and the fact that the case has been politicised, seem to make it more rather than less desirable to prosecute a high profile and powerful person like Mr Zuma for corruption. Otherwise the suspicion will linger that charges were dropped because of political pressure and hence will signal that if one is powerful enough one is above the law. This will completely discredit the crimial justice system and will hence not be in the public interest.
The circumstances of the offender must also be taken into account to decide whether it was in the public interest to proceed with prosecution. In this regard one should ask whether the accused has admitted guilt, shown repentance, made restitution or expressed a willingness to co-operate with the authorities in the investigation or prosecution of others. When taking into account the circumstances of the offender, one must also ask whether there has been an unreasonably long delay between the date when the crime was committed, the date on which the prosecution was instituted and the trial date, taking into account the complexity of the offense and the role of the accused in the delay.
This might help the NPA to justify a withdrawal of charges – especially given the fact that the NDPP first decided not to prosecute Zuma and then changed his mind. But given Mr Zuma’s high profile, the fact that he insists on his innocence, and the imperatives of fighting corruption, I would imagine the public interest in proceeding with the case will outweigh the interests of the offender. Unless of course Mr Zuma has now indicated to the NPA that he was willing to assist it in pursuing far bigger cases of corruption in the arms deal. Then it would be game on!
A third possible reason would seem to provide the most promising avenue for the NPA to justify a decision not to proceed against Mr Zuma. This would be that Mr Zuma will not be able to receive a fair trial as guaranteed by section 35 of the Constitution due to the unreasonable delays in the case, and that his application for a permanent stay of prosecution would hence have a strong chance of success and therefore that it was not advisable to continue the case against Mr Zuma.
Once again, the decision of Bulelani Ngcuka not to charge Zuma while stating that he had a case to answer would be pivotal. But this argument would not be without its problems as it could be argued that the decision about charging Mr Zuma was only really taken after the Shaik conviction in 2005 and that given our less than fully functioning criminal justice system, four years could not be considered to be an unreasonable delay. Moreover, many of the delays can be attributed to the various applications brought by Mr Zuma to challenge the legality of search and seizure warrants and indeed the decision to charge him at all.
So in conclusion it seems to me there are only two credible ways out for the NPA. Either it must proceed with charges against Mr Zuma or it must announce that it is dropping charges against Mr Zuma in return for his co-operation in order to catch the really big fish in the arms deal. The latter would of course constitute a political bombshell of the highest order and I am not sure if Mr Zuma will go down that rout as it might well backfire terribly against the ANC – unless of course all the people he plans to finger are now conveniently members of Cope.
As you rightly say that: “if Mr Zuma will go down that rout as it might well backfire terribly against the ANC – unless of course all the people he plans to finger are now conveniently members of Cope” then it definately would be said, would it?
Thank you for the explanations.
There is only one problem with the “big fish” argument. It is hard to imagine a bigger fish than the (then) Deputy-President of the nation, and current presidential candidate.
Of course, in considering the importance of possible additional prosecutions, then the scale of the crime would be considered as well as the importance of the accused..
The other problem would be that, in the absence of an already advanced investigation, Mr Zuma would need to supply a substantial amount of information and evidence to convince the NPA that further prosecutions could be contemplated. And if he could do this, thenwhy has he sat on this incriminating infrmation for so long. It surely could not be in the public interest to allow a public office-nearer toget away with covering up crimes for so long.
The other question would be whether it was lawful to have prosecution stayed in exchange for evidence in essentially unrelated crimes. remember that the arms deal is not a single thing, and more than one crime has been committed. Also, Mr Zuma faces many charges, not all of them related to the arms deal.
A final question: if the NPA makes a decision that is unlawful, who has legal standing to challenge this decision, and in what arena? And, who has the right to obtain information related to the decision?
I’d be interested to hear (read) your views on the ANC’s submission as friend of the court. I liked the part where they complained about the length of time, and thought that Dave King may want to avail himself of that defense.
At the end of the day – innocent men have nothing to fear – in fact, they would hasten their court appearance as much as possible.
IF JZ is innocent, and I don’t think he is, then the only other possible reason for him delaying his court appearance so much is that he is protecting other guilty parties, which he would be unable to do under cross-examination. If this is the case, I still find it untenable that the future president of South Africa would protect his buddies from prosecution for corruption, given his professed stand against this. It would then seem that the ANC is lying (also, not a big surprise).
As the Americans would say, We the People deserve answers. We deserve to know if our sort-of elected leaders are abusing their fiduciary and moral/ethical duties. It is our money which we have entrusted them to spend, and we have every right to ask them to account for it. If there have been dubious dealings, and money has been misappropriated, we have every right to expect these people to be removed from their positions.
The only interests which dropping the charges would really serve would be JZ and his comrades, as well as some foreign multi-nationals who benefitted handsomely from the now R70bn acquisition. I cannot understand how dropping these charges would even be a consideration.
I think that Mike Atkins is right. The political happenings of the past 4 years would have provided that big fish already, unless the big fish is the ANC itself.
Also, I am no legal mind but, even then, why would Msholozi’s fingering( i am not being naughty) of ‘a really big fish’ not amount to a plea bargain which would then mean an admission of guilt? Would such not require some sort of a sentence? And that given the charge sheet, that sentence would surely be longer that 12 months which would then disqualify him from parliament.
For me, the NPA can withdraw the charges and the plead NATIONAL SECURITY for not releasing the reasons.
Shit, fuck them dirty scoundrels, hey Pierre.
Your final questions, Mike Atkins, are very very good. If we, as a country, have no answer for them, then all it spells is doom an gloom because the powers that be can just about do anything they like with impunity.
Somebody please tell me that the public has some legal recourse to all this madness.
Tug of war for Zuma
See this report:
http://jv.news24.com/City_Press/News/0,,186-187_2485687,00.html
The ANC must surely be rueing its decision not to ask JZ to step down until his problems with the law are resolved. His alleged corruption and fall-out will dominate the headlines until the election, regardless of what happens now.
Isn’t it interesting that now that Judge Heath with intimate knowledge of all that transpired during the arms deal has been involved in formulating Zuma’s presentation – all of a sudden Ngcuka’s initial assessment has been validated.
So the problem for the PdV’s of the world is now to explain the following twist in logic: If Ngcuka had a case against Zuma but wanted to “protect” him because of political pressure why did he prosecute Shaik and publicly implicate Zuma in the first place. Surely if Mbeki had whispered in his ear to keep his hands off Zuma and the ANC he would not have implicated Zuma and may even have dropped the case against Shaik so as not to drag senior members of the ANC down with him.
On the other hand – if Ngcuka indeed had a case against Zuma and he was not swayed by political pressure to protect him – why did he not prosecute him ?
So perhaps what Mbeki whispered in Ngcuka’s ear was more or less that even although he had no case against Zuma he should make damn sure that the world would believe there was a “prima facie evidence” against him.
“Senior members of the ANC have taken the fight to South African Communist Party boss Blade Nzimande in a development that is considered as taking the ANC back from communist control.”
jv.news24.com/City_Press/News/0,,186-187_2485687,00.html
LOL – be mortally afraid of the “left-leaning” Zuma and the Rooi Gevaar – perhaps that is what Mbeki whispered in Ngcuka’s ear ? If those communist bastards come to power they may jeopardize your 100 mil shares in a well known company when you land with your butt in the BEE butter after your selfless service to the “business-friendly” president and his obedient NPA.
Ozoneblue,
The facts in the Shaik trial clearly indicate that there is a case against Zuma. This part is clear. I can go as far as saying Zuma knows he will be found guilty should he have his day in court, hence all these appeals, applications and submissions without ‘defending myself in court’.
Why Ngcuka said what he said, is unclear at this stage. Even Judge Nicholson found it bizarre. If there is any conspiracy against Zuma, it is because there is a case against Zuma.
That Zuma has a case to answer is fact, the other things may just be purely speculative.
@Tony in Virginia
Are people still listening to the Nicholson judgement?
Tony in Virginia @ 1:58 am
“I can go as far as saying Zuma knows he will be found guilty should he have his day in court, hence all these appeals, applications and submissions without ‘defending myself in court’.”
Or perhaps as PdV indicated Zuma knows that if he has his day in court the ANC, South Africa and our international trading partners will be found guilty ? The only way he can spite his face is to cut off his nose ?
khosi,
I really don’t know; but we should not forget that the Zuma lawyers have lodged an appeal, so reference to the Nicholson judgement is not going to go away anytime soon.
Zoo-ma
Please read: http://www.mg.co.za/article/2009-03-20-what-zuma-told-the-npa
With reference to the Zuma submission quoted above, I have a question for the Prof (or anyone else):
- what provision in law entitles the NPA to withdraw charges against an accused on the basis of evidence that may be given against someone else? (apart from section 204 of the Criminal Procedure Act)
I suspect we will loose the CC case. These case has turned politico-legal as the judges will import their deeply held views in this case.
The only missing episode is for judges to literally physically throttle one another on the Zuma guestion. objectively will not necessarily prevail.
The facts of this case and legal arguments have been expressed by experts and all, including the judges in beer halls. Judges had even lobby teams and dragging one another to lodges complaints. This is a farce
We will overcome this period . We are waiting for the decision of the NPA.
@Mike Atkins, et al
Firstly there is nothing new in these allegations by Zuma.
But, if I am understanding you properly, what you are saying should not apply based on Zuma’s submission.
What Zuma seems to be NOT saying is that he is not guilty. What he seems to be saying is that, his prosecution, for the crimes he is NOT denying, is Mbeki’s brainchild. In their judgment the SCA said the following of this line of thinking:-
“A prosecution is not wrongful merely because it is brought for an improper purpose. It will only be wrongful if, in addition, reasonable and probable grounds for prosecuting are absent, something not alleged by Mr Zuma and which in any event can only be determined once criminal
proceedings have been concluded. The motive behind the prosecution is irrelevant because, as Schreiner JA said in connection with arrests, the best motive does not cure an otherwise illegal arrest and the worst motive does not render an otherwise legal arrest illegal.”
So really, what needs to happen here is that if the MG article is true, both these men need to go to an open court and give explanations for this, especially given that the NPA is considering its actions based on this accusation on Mbeki by Zuma. Then the permutations of such should be allowed to play themselves out.
I, for one, expect Mbeki to be itching to contest these assertions.
More to read: http://www.thetimes.co.za/News/Article.aspx?id=963114
Khosi
I am with you on this one. If the report in the M&G is correct, it would appear that JZ does not deny that he is guilty of the charges. Quiet frankly, if this is true, I cannot understand why the NPA would even consider dropping the charges (if this is indeed happening).
Again, if the report is to be believe, all they will need to do is go knocking at Mbeki’s house; read him his rights and get him to come and explain his actions.
However, I still don’t think any of the so-called two main submissions are a defence to the charges faced by JZ. But I say let’s clear the air, charge JZ and TM (if you have evidence against them) and get all those people who are said to have filed affidavits to come and face cross-examination in Court. Damn, it might very well answer all the questions we all have about the arms deal – that, I would submit, would be in the NATIONAL INTEREST!!
khosi writes: “…I, for one, expect Mbeki to be itching to contest these assertions. …”
Cannot agree with you more. Mbeki has very little to lose, if anything. Zuma remains the BIG fish.
[...] Reasons not to charge Zuma unpacked [...]
1. Isn’t Zuma and his lawyers essentially saying “Let me off the hook or I will implicate someone else!”. Which is like me saying “Don’t arrest me for punching my wife, or I’ll give her a helse klap when I get out of chokey!”. This is intimidation. Shouldn’t people go to jail for that/ (I’d love to see Heath and Kemp behind bars.)
2. Aren’t they saying that they have been suppressing information relevant to their case for several years? in other words, aren’t they going into the courtroom having declared that they are unreliable witnesses? Isn’t the judge liable to wonder what other information they are hiding — especially information harmful to their case?
Pierre, you have not explored the “national interest” to its full extent. What if Zuma implicates Mbeki, the ANC, half the current cabinet and heads of govt depts / agencies, not only in benefitting from the arms deal, but also in destroying evidence? These revelations will impact on the Arms Deal Inquiry report, which will cast a massive shadow on those semi-independent agencies that did the investigation: Public Protector, NPA and whoever else were involved.
This will massively dent the confidence by the SA public in these institutions, their protection of the rule of law and protection of the public against abuses by the state. It will destroy the confidence and trust in the SA govt, not only by investors and outsiders, but also by the SA public. And lastly, it will require the NPA investigate and possibly prosecute half the govt.
However good it may be to uphold the law in these instances and see the guilty prosecuted, it will not be in the national interest to have half the cabinet facing possible prosecution.
Oupoot, “national interest” is not a ground on which the NPA can decide to drop charges against anyone if they have a winnable case in terms of the prosecutions policy – unless we talk about an apartheid era crime. They can drop charges in the public interest. Your argument seems to suggest that where the corruption runs too deep everyone should get off. I disagree. What really needs to happen is for any corruption to be exposed. This should lead to the fall of the government of the day, yes, but this is not uncommon in a democracy. One cannot argue that because a government will be implicated in corruption and this might bring that government to a fall, it would be in the public interest not to pursue charges against the corrupt as that would be to conflate the governing party and the state. Just because it will be bad for the governing party does not mean it will be bad for SA, surely, as the ANC is not the state. It just behaves sometimes as if it is.
the bugger would surely opt for the second option.he has shown that he is completely immoral,and would say and do anything to save his own skin.corruption was committed by people in government and therefore the extent of damage this case will do to government is of no significance.as you correctly put it,the interests of society far outweigh those of mr zuma and should therefore be brought before court to weigh the evidence and decide whether indeed he is guilty of crime.
Prof,
If the NPA did decide to drop the charges against Jacob Zuma do you think that conduct would fall to be reviewed in terms of the provisions of PAJA?
Without closely examining the Act, I would think that the decision to drop the charges against Jacob Zuma would constitute an administrative action within the scope of the Act.
If this is the case do you think the NPA is obliged to follow the provisions of s 5 of the Act in reaching its decision?
And if the public were dissatisfied with the decision of the NPA do you think that the provisions relating to judicial review come into play at all?
I look forward to hearing your views on this.
Pierre, you are right – it should be “in the public’s interest” and not “national interests”. And yes, in an ideal world or more democratic society, this sort of corruption scandal should lead to the fall and replacement of the current govt, with those responsible held accountable through the criminal justic system. But in the real world and current SA political environment, it is highly unlikely that the ANC will be replaced by any party or that they will be able to replace half their leadership with untainted persons.
I’m not suggesting that they go free or do not face punishment. But criminal prosecution and jail time may have unforseen consequences for SA, e.g. social unrest, withdrawal of investments or paralysing govt for 3-5 years, to name only a few.
No, I do hope the perpetrators will be exposed and some form of punishment be handed to them, maybe more based on the concept of restorative justice. This could be negotiated between the various political parties so that a consensus could be reached. E.g. fines at least equal to the amount of monies illegally gain plus interest, banned from public political life (in any form) for at least 10 years (but preferably more), and become directly involved in community development work for a min. period of 3 years.
Thus, their guilt is exposed, their reputations are destroyed or at least tarnished, they are removed from public life and policy making and they make some reparations to the SA public.
Oupoot, if I was advising the ANC I would tell them: ok first win the election, then announce an completely independent official commission of inquiry in the arms deal and pledge full co-operation with the investigation. Volunteer to hand over party finance records and all information at the disposal of the party and make sure that the investigators have enough info to produce a credible report. The arms deal will not go away and will eat away at the ANC slowly but surely, so lancing the boil once and for all is the only way to save the party from an inevitable demise. Then, once the report is published, open a discussion about the the appropriate action to be taken. Those involved in corruption will at least have to lose their positions but maybe criminal trials can be avoided “in the national interest”. Then we push the “reset” button on this whole thing and try better next time. Sadly they will not listen to such advice because too many of those implicated are in high places and will have their political careers ended. They are acting not in the interest of the ANC or the country, but themselves and in the process doing immeasurable damage to the ANC and the country.
As a citizen of this country, and a member of the public whose interest is at stake, I would far rather the full extent of the rot be revealed and those involved punished. The fear of a backlash, nationally and internationally, should not be a determining factor.
In fact, were the entire debacle to come out into the open and the relevant parties dealt with, I believe it would be more beneficial to this country than the ongoing saga. Surely the fact that higher office holders are found to be guilty, and therefore not immune to prosecution for their crimes, the SA public might perhaps find their faith restored in the Rule of Law and our country’s justice system. At the moment, I certainly have little faith in it.
heite,hola ,mocha,ag i mean let me rather get straight to the point. Prof, i can’t remember so well anymore but can you perhaps clarify to me in particular ( i think we apha mzansi have the prosecutorial system) what does it actually mean having regard to the whole NPA Zuma saga. ezasekai