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

Adriaan Basson
Adriaan Basson

On Friday the Supreme Court of Appeal (SCA) dismissed an appeal by the National Prosecuting Authority (NPA) and President Jacob Zuma against a High Court order which set aside the decision to withdraw charges against the president. What does this mean for Zuma and how will the NPA proceed? Adriaan Basson explains.

What does the SCA judgement mean for Zuma’s legal strategy?

It’s important to understand the process. The SCA ruled on Friday morning that the decision to drop the charges against Zuma was irrational and that means that technically the NPA must recharge him, but that’s not the end of the story.

As we’ve seen with Zuma over the years, he has used his lawyers, Kemp J. Kemp and Michael Hulley, to fight the NPA every step of the way. I think what we can expect is that Zuma will again make approaches to the NPA to argue why the charges should be dropped. The only difference this time is that the prosecutions boss, Shaun Abrahams, will not be able to use the spy tapes as reason to drop the charges.

What is Zuma’s next step?

What I expect to happen next is that Zuma’s legal team will approach the NPA with new representations about why the charges should be dropped. They may, for example, raise the issue of time that has lapsed since the original charges were brought in 2005. It’s twelve years later so there might be an argument that justice delayed is justice denied.

We also know that Zuma's legal team has always said that Schabir Shaik misrepresented him and the fact that Shaik was guilty doesn’t necessarily mean Zuma is guilty. They might even bring the Seriti Report on the arms deal to the NPA’s attention, because part of the case against Zuma was directly related to the arms deal and the report found there was nothing wrong with it.

If Abrahams decides not to prosecute, the opposition might take the NPA to court again. If he does decide to prosecute, Zuma could bring an application for a stay of prosecution if he believes that he was treated unfairly by the NPA.

I have no doubt that Zuma will again employ legal tactics to try and postpone facing a criminal trial, because he knows the case against him is very strong. The Shaik judgement was dooming for him and the chances that he will also be convicted of corruption if forced to stand trial are great.

There’s confusion around the number of charges against Zuma. What exactly was he originally charged with?

The number '783' comes from the number of payments Shaik made to Zuma, but Zuma only faced 18 charges. The best way to understand it is to look at it from a perspective that all the charges stems from two big corruption charges.

The first corruption charge against Zuma, on which Shaik was convicted, related to the payments Shaik made to Zuma. At the time he was a businessman in Natal and financial advisor to Zuma, who was at some stage the MEC of Economic Affairs in KwaZulu-Natal and then later the deputy president. The court found in the Shaik trial that he funded Zuma's lifestyle because he could no longer keep up paying for his family's expenses and needed extra cash. Shaik paid him and in exchange Zuma promoted his company for government work.

There was evidence led in the Shaik trial that showed how Zuma intervened as MEC by writing letters to businessmen to invest in KZN promoting Shaik as their BEE partner.

The second corruption charge related to the R500 000 bribe that was paid to Zuma from the French arms company Thales for the arms deal. Shaik’s company Nkobi was included in the arms deal as BEE partner to provide something called combat suites to the frigates, which is basically all the technology on the ships. As part of this agreement Zuma actually flew to Paris to meet with the bosses of Thales and again tried to convince them to take Shaik as their partner.

In the Shaik trial the court accepted that that was a bribery agreement and a ‘French fax’ was the so-called smoking gun which proved Zuma accepted the bribe of R500 000 and agreed to protect and promote Thales in South Africa.

So those were the two pillars on which Shaik were convicted. What the NPA did in their last indictment against Zuma was to say that this arrangement between the two constituted a racket and they also charged him with racketeering. There were also a number of fraud charges relating specifically to tax evasion by Zuma.

Will there be consequences for Mokotedi Mpshe, the acting head of the NPA at the time?

There definitely should be. He made a decision that fundamentally shaped our history as a country. He was the man who decided to withdraw the charges against Zuma – irrationally, as we know now. This meant that Zuma could become president and it had a fundamental effect on the country. Obviously Mpshe had to follow the law, but importantly, he was opposed in this decision by Billy Downer, the prosecutor in this case. It was only in the end Mpshe and Willie Hofmeyr, the deputy head of the NPA, who stood by the decision to drop the charges. Downer and his team have been vindicated by Friday’s judgement.

Shortly after he made the decision, Mpshe was shipped out to the Land Claims Court where he was made an acting judge. What happens to that now? He didn’t go through the normal processes? This might be something that the Judicial Service Commission should look at. There should be consequences for him as well.

Can Zuma appeal to the Constitutional Court?

Technically, yes. Any party that loses in the Supreme Court of Appeal can go to the Constitutional Court. But you have to have very good constitutional grounds for that. The summary of the SCA judgement made it clear that the judgement is based on procedural matters that went wrong, so I can’t see it happening. They’ll have to dig deep to find grounds for an appeal to the Concourt.

What does the judgement mean for Zuma politically?

It is a blow for Zuma politically. You will remember that the ANC recalled Thabo Mbeki based on a High Court ruling that didn’t directly implicate him in criminality but found that Mbeki had interfered in Zuma’s prosecution. This ruling was later overturned by the SCA, but the ANC still dismissed Mbeki based on the strength of the High Court ruling. This judgement is much stronger – this is a SCA ruling that technically reinstates corruption, fraud and racketeering charges against a sitting president.

It should weaken him and provides enough grounds to recall him. Will the ANC NEC do it? Probably not, Zuma is politically stronger than Mbeki was but it does weaken his camp and his case for his successor to win at the end of the year at the ANC conference. It definitely gives impetus for his opponents, or the opponents of Nkosazana Dlamini-Zuma, to get rid of the president.

How do you think the whole thing will play out for Zuma?

There’s a saying that the wheels of justice turn, but it turns very slow. I think that the wheels of justice are turning and I believe that Zuma will finally have his day in court, which he has asked for but didn’t really show any support for.

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