Zuma camp angry as NPA set to appeal

2008-09-17 00:00

The jubilation of the Jacob Zuma faction over Judge Chris Nicholson’s ruling on Friday that the ANC president’s prosecution is invalid on “procedural” grounds, changed to dismay and anger yesterday when the National Prosecuting Authority (NPA) announced it will seek leave to appeal Nicholson’s judgment.

NPA spokesman Tlali Tlali said that the NPA has carefully studied the judgment and has taken the advice of senior counsel on the matter.

Although the anticipated delays in finalising an appeal make it virtually impossible for Zuma to stand trial on corruption charges before next year’s general election — if he ever does — the NPA appears to have been caught in a “catch 22” situation.

Some sources question why the NPA chose the long route of an appeal when the judge ruled that if it follows the correct procedure and hears representations from Zuma, the state can re-charge him.

By doing so, however, the NPA would have to accept all the findings of the judgment.

If the NPA fails to challenge the ruling that Zuma was denied his legal right to make representations to the National Director of Public Prosecutions (NDPP) before it decided re-charge him, it could open the floodgates for many other accused to claim a similar privilege.

More importantly, perhaps, the NPA would also be seen to accept that there is merit in Zuma’s allegations of a “political conspiracy” against him and the question mark that Nicholson’s judgment places over the independence of the NDPP.

These findings would impact on the NPA’s ability to defend any future application by Zuma for a permanent stay of prosecution, and are allegations which the NPA has vigorously denied throughout its legal pursuit of Zuma.

The judge’s remarks arose during his consideration of an application by the NPA to strike from the case what it termed “scandalous and vexatious” allegations by Zuma that his prosecution is politically driven.

Nicholson said the only way to ensure the independence of the NDPP is to make the appointment subject to the same conditions as a judge. “If his security of tenure and independence is not assured and he can be suspended by the executive, the whole legal process is in serious jeopardy,” he said.

He criticised the closeness between various NDPPs and the Justice Ministry, the failure of former NDPP Bulelani Ngcuka — apparently for political reasons — to prosecute Zuma in 2003 after saying there was a “winnable case” against him, and President Thabo Mbeki’s sacking of Zuma thereafter as deputy president. He also found the suspension of NDPP Vusi Pikoli was due to political meddling.

Responding to a suggestion that Pikoli’s suspension was triggered by a breakdown in the NDPP’s relationship with Justice Minister Brigitte Mabandla, he said there should not be any relationship.

Nicholson also said acting NDPP Mokotedi Mpshe (who decided to prosecute Zuma in December 2007) must have realised that to disobey the executive “would in all probability ensure his own professional demise”.

The NPA has 15 days from the date of the judgment to file its application for leave to appeal. It can appeal to either the Supreme Court of Appeal or the Constitutional Court.

The application for leave to appeal will be decided by Nicholson. If he holds the view that another court might reasonably find differently, he will grant leave to appeal.

The NPA said in a brief statement that its grounds of appeal will include submissions that Nicholson’s interpretation of the Constitution and the NPA Act regarding the obligation to solicit representations (from Zuma) before re-charging him are incorrect.

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