Judge says decision to prosecute ANC deputy president was made on unsound foundation

The corruption case against Jacob Zuma was doomed to failure from the very start. So said Mr Justice Herbert Msimang yesterday on refusing to grant the State's request for a postponement of the case against the former deputy president and French arms company Thint.

"It had dawned on us that it was inevitable that the State's efforts to prosecute in this matter would flounder.

"From the very outset, when a decision was taken to prosecute, those efforts were anchored on an unsound foundation," the judge said.

According to National Prosecuting Authority (NPA) boss Vusi Pikoli, the State had decided to prosecute Zuma - just 12 days after his former financial adviser Schabir Shaik was convicted of fraud and corruption last year - for several principal reasons.

These were:

KwaZulu-Natal High Court Judge Hilary Squires's ruling that there was a "generally corrupt relationship" between Shaik and Zuma.

The impact that the Shaik judgment - that Zuma had been involved in a "generally corrupt" relationship - could have had on the South African economy.

Zuma's public declarations that he wanted the opportunity to clear his name in court.

The enormous public and media interest in the Shaik trial and its repercussions for Zuma.

But, according to Judge Msimang, the State's reasons and approach to prosecuting the ANC deputy president had "jettisoned" standard legal practice "in favour of some non-procedural policy" and "ill-advised decision-making".

Essentially, the judge suggested, the State had rushed into prosecuting a highly complex case with little or no regard for its ability to do so successfully.

Throughout the State's application to postpone the trial, the judge questioned whether there had been any "procedural advantage" to be gained by charging Zuma so soon after Shaik's conviction.

And it is now apparent that the judge failed to find a satisfactory answer.

From the time that the State elected to prosecute Zuma, its case had "limped from one disaster to another", he said.

Judge Msimang criticised the State for:

Failing to ask for a postponement of Zuma's case for further investigation in October 2005, when the matter was still in the Magistrate's Court.

Agreeing to provide the defence with an indictment based on the charges for which Shaik was convicted - which, according to the judge, the State "knew very well" they would not use when Zuma eventually went on trial and which was "another false foundation for which the State was bound to pay".

Failing to "factor the inherent delays into their headstrong decision to prosecute" - a reference to the legally contested August 2005 search-and-seizure operations conducted against Zuma, Thint and Zuma's lawyers by the Scorpions.

Reacting to the pressure it felt as Zuma's proposed July 31 trial date drew near by handing unlawfully seized documents over to auditors KPMG in May and instructing them to proceed with a report into Zuma's financial affairs;

Taking their chances that the court would come to their rescue and admit such evidence, "overlooking the fact that, even for that purpose, for them to be granted a postponement in the matter, they needed to show that such evidence would be available on the adjourned date - a task, we have found, they were not equal to".

Ignoring judicial guidelines about the use of disputed documentation.

Falsely claiming under oath that the State had given KPMG the contested documents after reaching "agreements in principle" with Zuma and his attorneys about the seized documents.

While admitting that the State was disappointed by Judge Msimang's ruling, NPA spokesman Makhosini Nkosi elected to keep mum about when and where Zuma might be recharged.

He said Pikoli would study the judgment and he and the the prosecuting team would make a decision.

With acknowledgements to Karyn Maughan, Jeremy Gordin and Cape Argus.