THE legal advice given to Bulelani Ngcuka, former head of the National Prosecuting Authority (NPA), by his own investigators was to bring criminal charges against the Deputy President for corruption.

The Citizen has established this from a speech Ngcuka prepared but only partly delivered at his August 23, 2003 Press conference, when he said the NPA would not prosecute Deputy President Jacob Zuma. Now sources have told The Citizen if Schabir Shaik is convicted of corruption Zuma will almost certainly also be charged with corruption, which the NPA wanted to do more than two years ago.

A source close to the investigation into the arms deal said: “If the court finds Shaik is a corrupt giver then it follows there is a corrupt receiver out there. It would make no sense not to prosecute the person who was bribed when the bribe-payer was prosecuted. “And, if the courts convict Shaik, it will give the prosecutors political top cover to charge the Deputy President. It would mean a judge, and not the Scorpions, has decided corruption took place.” Makhosini Nkosi, NPA spokesman, declined to comment on that. He said: “We do not want to comment at all.

The judge has not given a verdict yet, and there is a lot of wild speculation.” Professor Andre Thomashausen, head of the department of foreign and comparative law at the University of South Africa, said prosecution of corruption was much easier in South Africa than in other countries. “Unlike in most other countries you do not need to prove the person who was bribed delivered a service to the person who was bribing. That is a crucial difference. It would make it easy to convict someone if the will was there. You need only prove they took bribes.” The corruption charge against Shaik is just that. That he corruptly made payments to Zuma that Zuma was not entitled to.

But Prof Thomashausen also pointed out it might be extremely difficult to prosecute Zuma if he chose to use the constitution to protect himself. The Ngcuka speech – which The Citizen has a copy of – reads in part: “The investigating team recommended we institute a criminal prosecution of Deputy President Zuma.” This line was never revealed, and instead the public heard there was a prima facie case against Zuma, but it had been decided not to prosecute as it was believed the case was not strong enough.

At the time the investigating team was headed by advocate Gerda Ferreira, of the Directorate of Special Operations – commonly known as the Scorpions – and advocate William Downer SC. Ms Ferreira resigned soon after the decision not to prosecute Zuma was announced. Mr Downer, who has prosecuted the case against Mr Shaik, is not a member of the Scorpions. He is a prosecutor employed by the NPA – of which the Scorpions are a part. He is a Rhodes scholar who studied law at Oxford University, and the NPA’s most senior prosecutor. His opinion at the time was that the case against Zuma could be won in court – even though the team had not yet completed the investigation.

Mr Downer subsequently confirmed the team did request permission to ask a judge for a warrant to search Zuma’s homes and offices. Permission was denied.

With acknowledgements to Paul Kirk and The Citizen.