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President Jacob Zuma’s legal team has one month to petition the Supreme Court of Appeal (SCA) to hear an appeal in the DA’s “spy tapes” case. Until then, the president legally faces corruption charges.
The North Gauteng High Court in Pretoria on Friday dismissed Zuma and the National Prosecuting Authority’s (NPA’s) application for leave to appeal against its ruling in April, in which it held that the decision to drop corruption charges against Zuma back in 2009 was irrational.
Also rejected by the court was the argument advanced by Zuma’s lawyers that it had been wrong to find that “Mr Zuma should face the charges as outlined in the indictment”.
This finding led to a spat in Parliament and a ruling by Deputy Speaker Lechesa Tsenoli that MPs were not allowed to refer to Zuma as “accused number one”.
Kemp J Kemp, Zuma’s advocate, argued against the finding of the court that Zuma should face the charges, saying that it ignored the fact that charges against him had been formally withdrawn in court.
But on Friday, a full bench of the court, consisting of Deputy Judge President Aubrey Ledwaba and judges Cynthia Pretorius and Billy Mothle, rejected that argument.
“In our view, the withdrawal of the charges against Mr Zuma was not an acquittal. Such withdrawal does not nullify the decision to prosecute should advocate [Mokotedi] Mpshe’s decision be set aside. The said withdrawal cannot be regarded as a factor to stop Mr Zuma [from facing] the charges,” the court ruled.
This means that until Zuma or the NPA file an appeal – which would immediately suspend the effect of the high court’s judgment – the charges are automatically reinstated.
In terms of the Superior Courts Act, notice of such an appeal must be filed at the SCA within a month.
A further option for Zuma and the NPA would be to attempt to bypass the SCA and appeal directly to the Constitutional Court.
Pierre de Vos, professor of constitutional law at the University of Cape Town, said the effect of Friday’s judgment was that the original decision to prosecute Zuma had effectively been “revived from the dead”.
As a result of the matter now being technically with the prosecuting authority, another option that would, hypothetically, be open to it would be to again decide to withdraw the charges.
“[But the NPA] will have to find other reasons and they will have to be rational reasons for again dropping the charges ... they can’t be reasons relating to the conversations between [former Scorpions boss Leonard] McCarthy and [Bulelani] Ngcuka.”
The conversations referred to were contained in the spy tapes. Zuma relied on them in submissions to the NPA in which he argued that the prosecution against him had been manipulated for political purposes.
While stressing that if McCarthy had behaved in that manner, it would be a serious breach of the law and prosecutorial policy, the court ruled that his conduct had not in fact been proven.
It rejected an argument to this effect in an affidavit by Willie Hofmeyr, deputy director of public prosecutions, who was privy to the decision to drop charges against Zuma.
The court held that, in applying for leave to appeal, Zuma and the NPA had “invented novel legal grounds by misinterpreting sections of the judgment or some selective sentences of the judgment”.
Both the NPA and the presidency said they were still studying the judgment.
James Selfe, executive chairperson of the DA, said the party was bracing itself for another appeal in its seven-year legal battle to review the NPA’s decision.
