6 reasons NPA is appealing 'spy tapes' ruling

2016-05-23 13:00
Shaun Abrahams (Genevieve Quintal, News24)

Shaun Abrahams (Genevieve Quintal, News24)

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TIMELINE: Corruption charges, Spy Tapes and court appeals

2016-04-29 15:53

The case of corruption against President Jacob Zuma has run hot and cold since 2007. On Friday the North Gauteng High Court over-ruled a decision to drop the charges.WATCH

Pretoria - The National Prosecuting Authority (NPA) has announced it is seeking leave to appeal a court ruling that corruption charges against President Jacob Zuma be reinstated.

National Director of Public Prosecutions Shaun Abrahams said the appeal would be lodged with the Supreme Court of Appeal on Monday.

In its application for leave to appeal, the NPA said there was "considerable public interest" at stake in this matter.

"The issues in this application… are of great constitutional import. It concerns the powers of the National Director of Public Prosecutions. This is a case which impinges upon vital constitutional questions of peculiar public interest."

On April 29, the full bench of the High Court in Pretoria ruled that President Jacob Zuma should face the 783 charges of corruption.

After a seven-year battle by the DA, the court ruled that the decision to discontinue the prosecution against Zuma should be reviewed and set aside.

On April 6, 2009, then-NPA head Mokotedi Mpshe said transcripts of telephone conversations between then-Scorpions boss Leonard McCarthy and former NPA boss Bulelani Ngcuka, showed political interference in the decision to charge Zuma.

The charges were withdrawn in the High Court in Durban on April 7, 2009.

Last month, the court found that Zuma should indeed face corruption charges after Deputy Judge President Aubrey Ledwaba said Mpshe had come under pressure and had, therefore, decided to discontinue the prosecution against Zuma.

The NPA has cited six grounds for its appeal:

1) The court erred in finding that Mpshe had acted irrationally by not referring the complaint of abuse of process and the related allegations against Leonard McCarthy to court

"As a matter of logic, there seems no reason why the head of the prosecuting service may not take it upon himself to determine that the abuse was so egregious as to warrant discontinuation, even in the absence of a direct causal nexus between abuse and the prospects of a fair trial," the NPA said its application for leave to appeal.

The prosecuting authority said it was emphasised that senior management formed the view at the time that it was not in the public interest to proceed with the matter in light of McCarthy's conduct.

"It would be artificial and make no sense for the prosecutor who has formed the view that the prosecution should not be proceeded with, to wait for the accused to bring an application to stay by the prosecution and to then acquiesce."

2) There was a transgression of the separation of powers

According to the NPA, the court should have found that the prosecutorial process was tainted and that it was not irrational to discontinue the prosecution.

The NPA, in its application, said it believed that the court had erred when it said Zuma should face the corruption charges.

"This finding is an inappropriate transgression of the separation of powers doctrine.

"The doctrine precludes the courts from impermissibly assuming that functions that fall within the domain of the executive," it said.

3) Mpshe did consider the merits of the case

The high court found that Mpshe omitted to consider one of the imperatives of the matter, namely that the public needed to be protected from serious crimes.

"Mr Mpshe made clear that he considered that the public interest factor outweighed the continued prosecution of Mr Zuma, notwithstanding that the prosecutors felt firmly about the merits of the case," the NPA said.

The prosecuting authority argued that when the rule of law was undermined, as in the case with McCarthy, it may be rational to stop prosecution.

4) The NPA process was abused for political reasons

The NPA is arguing that McCarthy and Ngcuka had manipulated it to assist former president Thabo Mbeki in his battle against Zuma at the ANC's 2007 Polokwane conference.

"The impunged decision to discontinue the prosecution was intended, inter alia, to send a clear message that political interference in the work of the NPA would not be tolerated," it said.

5) Mpshe, as acting NDPP, had the power to discontinue the prosecution

The NPA believed that Mpshe's decision was rationally related to the purpose for which the power was conferred.

"The purpose of that power in this context may be to guard against manipulation, and ensure that all persons who are the subject of a prosecution, are dealt with in a manner which is fair, and by an independent authority not suborned or manipulated for political needs, further that the prosecution process is not in any way manipulated for an extraneous purpose unconnected to the actual prosecution."

6) Court failed to appreciate the true reason for McCarthy and Ngcuka to delay serving the indictment on Zuma

According to affidavits, the two decided to delay serving the indictment because they believed that Mbeki's chances of beating Zuma at the Polokwane conference would be strengthened. It was decided that the indictment would be served after the conference.

"It is clear that Mr McCarthy and Mr Ngcuka believed that the service of the indictment shortly before the Polokwane conference would provoke a reaction and backlash from persons attending the conference who would consider that this was being done in order to besmirch Mr Zuma and to advantage President Mbeki," the NPA said in its application.

McCarthy persuaded Mpshe to delay service of the indictment.

It was against this background that Mpshe made the decision to discontinue the prosecution.

Read more on:    da  |  npa  |  jacob zuma  |  shaun abrahams  |  zuma spy tapes

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