NPA can appeal on Zuma

2008-10-22 00:00

The race is now on for the National Prosecuting Authority to have its appeal against Judge Chris Nicholson’s watershed judgment of September 12 heard urgently in the Supreme Court of Appeals (SCA).

But there appears to be slim hope of the NPA securing a hearing in the SCA before the end of this year, even on an urgent basis, and it is believed they will aim for a date early next year, possibly around February.

NPA spokesman Tlali Tlali said the NPA is very pleased with Nicholson’s decision yesterday to grant them leave to appeal, and said they will approach the SCA within days for a date.

He would not be drawn on the effects the SCA ruling could have on the future of the criminal charges against Jacob Zuma and his former co-accused, French-based arms deal company Thint and its representative, Pierre Moynot.

“Let’s cross that bridge when we come to it,” said Tlali.

He said the NPA is of the view that the outcome of the appeal is of great public interest and that it is therefore extremely important that certainty be reached as a matter of urgency.

Tlali did not discount the possibility that the case could eventually still end up in the Constitutional Court, and said the NPA and Zuma’s legal team would have the right to consider further litigation once the SCA has ruled on the matter.

The Durban High Court was packed almost exclusively with members of the media and the legal teams for yesterday’s hearing.

In the absence of Jacob Zuma, whose presence was not required at court, a single Zuma supporter bearing a placard with the words “Viva Zuma” cut a lonely figure outside the courthouse.

Nicholson granted the NPA leave to appeal against the whole of his judgment based on the 16 grounds of appeal detailed in their application.

These include an attack on his findings that the National Director of Public Prosecutions had to accept and consider representations from Zuma before taking the decision to prosecute him in 2005 and 2007, and his interpretation in that regard of Section 179 (5) (d) of the Constitution.

In its grounds of appeal, the NPA has also suggested that Nicholson acted irregularly or that he erred in finding that there was political meddling in Zuma’s corruption case.

Nicholson said yesterday the test to be applied is whether there are reasonable prospects of success on appeal.

He said the case involved difficult and “complex questions of fact and law” and said he believes there are reasonable prospects of success on appeal.

With regard to the applications to strike out allegations of political interference, Nicholson said detailed reasons were given in the notice of appeal and heads of argument (by the NPA) as to why the court erred in making such findings.

“In addition full oral argument was not addressed on these particular applications at the hearing on August 4 and 5. I believe there are reasonable prospects on appeal on these issues and I … grant leave in that regard as well,” he said.

Another issue raised yesterday was whether Zuma’s application to declare his prosecution invalid was correctly dealt with as a “civil court” application, or should have formed part of Zuma’s criminal trial.

Legal sources said the difference is that having considered the matter as a civil application, the decisions were taken by Nicholson alone, whereas in a criminal proceeding assessors also have a say.

Nicholson said whether the matter was of a civil or criminal nature has never been considered before and occasioned him “much anxious deliberation”.

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