As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
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.BACK TO TOP