Spy tapes judgment was not surprising - expert

2017-10-13 17:00

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Bloemfontein – Judgment handed down by the Supreme Court of Appeal (SCA) on Friday in the spy tapes matter was hardly surprising, say legal experts.

It was all over when President Jacob Zuma's legal team and the National Prosecuting Authority (NPA) conceded that the decision not to prosecute him on corruption charges was irrational.

Constitutional Court expert Phephelaphi Dube said the judgment was just confirming that they were right to have conceded.

REACTION: SCA sends Zuma case right back to NPA

Justice Eric Leach delivered the much-anticipated ruling dismissing the NPA and Zuma's appeal against a 2016 decision by the North Gauteng High Court in Pretoria that found that the NPA's decision to drop the charges against Zuma that related to fraud, racketeering and money laundering, was irrational.

Dube said the SCA ruling itself was quiet mindful. 

Next cause of action

"The SCA was careful not to prescribe to the NPA what the next cause of action should be. But it was quite clear that the decision now lies with the NPA."

She said the NPA and its head Shaun Abrahams will need to make a rational decision on how to move forward.

Dube also said Zuma was now between a rock and a hard place because his legal representative had already conceded that they didn't have much of a case. 

"So having made that concession it means they have little room to appeal. They have almost no ground to appeal," she said.

Zuma can only approach Constitutional Court after asking for permission from the SCA. 

Dube pointed out that during the oral arguments before the full bench on September 15, the justices covered any possible eventualities. 

"It makes it very difficult for the NPA and Zuma to out maneuver this one."

She said although the NPA might argue that so much time has gone by and they don't have enough evidence, she noted that they had a complete docket in 2009 and nothing had changed.

Watch analyst Lawson Naidoo unpack the judgment: 

Criminal lawyer Ulrich Roux said the best way forward was for Zuma to approach the ConCourt.

He said the highest court in the land would be able to decide if the High Court and SCA made the right decision.  

Roux said if the NPA decides not to prosecute Zuma then a private prosecution can be instituted.

Following the judgment, the NPA said it will consider and "interrogate" it. 

READ: We will 'interrogate' SCA spy tapes ruling - NPA

The ruling said the authenticity and legality of the recorded conversations which former NPA boss Mokotedi Mpshe considered vital to his decision to discontinue the prosecution were not beyond doubt.

Recordings 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 two were recorded discussing the timing of bringing charges against Zuma. The charges related to his alleged involvement in the country’s multi-billion rand arms deal.

Leach said that since the recorded conversations were considered vital, greater thought ought to have been given by the NPA.

READ: Adriaan Basson: What the spy tapes ruling means for Zuma's future

He said the reasons for discontinuing the prosecution provided by Mpshe "do not bear scrutiny for the record themselves" on which he relied upon.

In September 2008, Pietermaritzburg High Court Judge Chris Nicholson dismissed criminal charges against Zuma, citing a political conspiracy to influence the case by former president Thabo Mbeki and others.

Nicholson's decision was taken to the SCA which was overturned. Zuma subsequently appealed this in the Constitutional Court, setting in motion a direct approach to the NPA to make written and oral representations on why the case should be dropped.

The 18 charges were subsequently withdrawn, just before Zuma was sworn in for his first term as president.

Watch: Lawson Naidoo says the NPA is not obliged to hear from Zuma's representative: 

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Read more on:    npa  |  jacob zuma  |  spy tapes  |  state capture  |  corruption

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