With August 4 now set as a mere staging post to the trial on corruption-related charges of Jacob Zuma, the ANC president, the chances of the trial being completed before the pending elections of a new parliament and a new national president early next year are virtually nil *1.

That will not deter the ANC from nominating Zuma as its candidate to succeed Thabo Mbeki as South Africa's third president in the post-apartheid era, judging by the statement issued by the ANC and its allies after the tripartite alliance's summit meeting a fortnight ago.

The statement reads: "The summit reaffirmed its support for the president of the ANC. We will not only be accompanying him to court but to the Union Buildings as the next president of South Africa."

The prospect of Zuma occupying the presidential office while serious charges against him are still pending raises the intriguing - and important - question of whether he will be able to exercise his newly acquired presidential powers to pardon himself in advance of his long delayed trial for corruption, fraud, money laundering and racketeering.

"No, he will not," states a senior member of the bar council who has followed the legal tribulations of Zuma closely.

The constitution empowers the president to pardon convicted prisoners, he explains, but not to pardon people indicated on serious charges in advance of their trials, let alone pardon himself as an accused in a pending trial.

Another ploy might be open to Zuma and his lieutenants, however, one that could deter the charges for as long as 10 years.

The ANC might use its anticipated majority in parliament after next year's parliamentary and provincial elections to pass a law granting Zuma immunity from prosecution for the duration of his occupation of the presidential office.

The senior counsel cited above observes that the presidents of some states in Africa and elsewhere are protected by law from prosecution as long as they serve as heads of government and state. He is uncertain, however, whether a similar law, would pass muster if it were challenged in the constitutional court.

A second senior advocate thinks that a case could be made for a law to enable Zuma to fulfil his responsibilities as head of government by freeing him from the threat or reality of having to defend himself in the dock.

If an ANC-initiated law protecting Zuma as the incumbent president against prosecution was approved by parliament but challenged in court, counsel for the ANC government would have to demonstrate why the imperative of governance should take precedence over the obligation of the prosecuting authority to exercise its power "without fear, favour or prejudice".

The differences in the assessments of the two senior advocates approached by The Sunday Independent are nuanced rather than diametrical: the first doubts whether it will be approved if challenged in court, while the second thinks it might be, provided the case is argued persuasively.

Shadrack Gutto, a constitutional law scholar who heads the Centre for African Renaissance Studies at the University of South Africa (Unisa), offers another view.

Although there might be a case for the general principle of protecting all incumbent presidents from prosecution, Gutto reasons that the introduction of a law to protect one particular president is a different matter, especially if the president concerned has already been indicted.

Marinus Wiechers, the emeritus professor of law and former principal and vice-chancellor of Unisa, agrees that it would be difficult to argue that it was in the national interest for Zuma has to be identified by name in prospective legislation to confer immunity from prosecution on him during his anticipated tenure as national president.

Gutto recalls that Nelson Mandela was subpoenaed to give evidence in a court case relating to an attempt by Louis Luyt, the former supremo of South African rugby, to resist what he saw as unjustified interference in the administration of rugby by the post-apartheid state.

As Anthony Sampson records in his prize-winning authorised biography of Mandela, the great man did not use his presidential status as a reason for rejecting the subpoena and instead submitted to cross-examination by Luyt's legal representative in open court.

Sampson writes that Mandela's agreement to appear was prompted by his desire to uphold the rule of law, one of the fundamental tenets of which is that no one, not even presidents, are above the law.

Gutto sees Mandela's court appearance as an uncomfortable precedent for Zuma, should he decide to seek immunity from prosecution during his expected tenure as national president, the more so as Zuma is a known admirer of Mandela.

If Zuma is elected to serve as national president and if he takes the immunity option, as the ANC leadership corps is likely to prevail upon him to do, it might mean that the national prosecuting authority will have to wait until 2019 before it can charge him in court.

The scenario sketched above - which is based on the assumption that Zuma, like Mbeki, will serve two five-year terms as president - reinforces what appears to be the delaying strategy of Zuma's lawyers.

They have used every stratagem open to them to defer Zuma's day in court, presumably with the consent of Zuma. To that end they have several irons in the fire, so to speak.

These include:

* An application before the constitutional court contesting the finding of the supreme court of appeals that the August 2005 search and seizure raids by the Scorpions on Zuma's houses in Johannesburg and Nkandla and the offices of his attorneys in Johannesburg and Durban were lawful;
 

* A pending application for a review of the mid-2005 national prosecuting authority's decision to prosecute; on the grounds that it compromises his rights; and, if that fails;
 

* A court application for a permanent stay of execution of charges against Zuma as his case has been delayed for far too long.

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