Zuma sets out plea to ConCourt

2009-02-03 00:00

It would be in the interests of justice and the public interest for the Constitutional Court to finally determine the issues raised in Jacob Zuma’s application for leave to appeal against the January ruling by the Supreme Court of Appeals (SCA), which has re-opened the door for his prosecution.

This is argued on Zuma’s behalf in a 123-page affidavit submitted to the Constitutional Court judges by his lawyer, Michael Hulley, in the bid to persuade the court that Zuma was unfairly, and — in terms of section 179 (5) (d) of the Constitution — unlawfully, deprived of the opportunity to make representations before acting national

director of public prosecutions (NDPP), Mokotedi Mpshe decided to prosecute him again in December 2007.

The National Prosecuting Authority — bolstered by the SCA’s scathing criticisms of Judge Chris Nicholson’s judgment last September — has wasted no time in putting Zuma back in the dock.

He is charged with 18 charges of racketeering, corruption, money laundering, tax evasion and fraud.

The ANC president — along with co-accused Pierre Moynot, representing the French arms company Thint — is due to appear in the Pietermaritzburg High Court today.

Today’s hearing is expected to deal with legal formalities and provide an opportunity for the opposing legal teams to thrash out a timetable for the future conduct of the proceedings.

Judge Leona Theron — who is currently presiding over the criminal session in Pietermaritzburg — has been appointed by KZN Judge President Vuka Tshabalala to conduct today’s proceedings.

Tshabalala told The Witness last week that he has not yet decided who the trial judge will be as this depends on many factors including the date set down for the trial.

If the Constitutional Court is willing to consider Zuma’s appeal against the SCA ruling, this will also have a bearing on the future of the case.

In his bid to persuade the Concourt to hear Zuma’s appeal, Hulley submitted that the issues in the case transcend the immediate dispute between the NPA and Zuma, saying it has “various operational implications for the prosecuting authority”.

“It is contended that the resolution of the dispute about a proper interpretation of Section 179 (5) (d) raises important issues regarding the correct interpretative approach and the outcome governs how the NDPP has to approach the extremely important issue of changing decisions to prosecute at the highest level which impacts very significantly on the future rights and expectations for all those directly affected by decisions to prosecute or not,” he submitted.

Hulley has also submitted that the SCA’s criticisms of Nicholson’s findings with regard to allegations of “political meddling” in Zuma’s prosecution were “misplaced” and argues that the “pervasive attack” on his approach and findings was misconceived.

Hulley submits that the SCA failed to recognise the importance and relevance of the allegations of political meddling in respect of the decision (by the NDPP) whether to seek and hear representations from Zuma or not. Clearly, he argues, it is relevant in order to promote confidence in the decision to be made.

Hulley criticised the SCA’s comment about Zuma’s “cut and paste” approach from previous affidavits. He said it has been “spelt out” that this was done so that there could not be any dispute about what allegations formed the backdrop to the decisions to prosecute Zuma.

He said the remarks illustrated that the SCA misunderstood the relevance of the background relating to the “political issues”.

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