NPA launches urgent appeal and attacks controversial judgment which declared prosecution invalid

The judgment that painted ex-president Thabo Mbeki as a political meddler in ANC president Jacob Zuma's corruption prosecution is not backed up by a shred of evidence.

Nor, says the National Prosecuting Authority, is it supported by a single claim from Zuma himself.

The NPA yesterday slated Judge Chris Nicholson's strong suggestions that Mbeki and former justice ministers Penuell Maduna and Brigitte Mabandla had interfered in Zuma's prosecution as "based on inferential reasoning which was fundamentally flawed and not justified by the evidence on which it was based".

"They (the findings) were entirely of the court's own making," the state argues in documents filed at the Supreme Court of Appeal.

In its urgent appeal against Judge Nicholson's ruling, which declared Zuma's prosecution invalid and effectively quashed it, the state points out that Zuma had failed to produce any evidence backing up his "political conspiracy" claims.

Instead, the aspiring president stated under oath that the relevance of his accusations "does not for present purposes lie in the truth or correctness thereof … but in the simple existence thereof".

Zuma's attorney, Michael Hulley, repeated this argument in response to the NPA's bid to appeal against Judge Nicholson's ruling, stating that "the truth of the (political conspiracy) averments is not where their main relevance lay".

According to the state, this contention was unfounded and did not justify Judge Nicholson's political-interference deductions - which the judge made without asking former and current prosecuting bosses Bulelani Ngcuka, Vusi Pikoli and Mokotedi Mpshe for their side of the story.

Zuma's prosecutors argue that the judge's harsh findings against Mbeki were "misconceived" because there was no hard evidence that he or his ministers had interfered in the case against Zuma.

The NPA has vehemently denied that Mpshe's December 2007 decision to charge Zuma with racketeering, corruption and fraud, made days after Zuma won the ANC presidency from Mbeki, was politically motivated. It argues that Zuma's recharging came after the state won the right to use evidence gathered against him, and claims its timing was "entirely innocent".

"If (the decision to re- charge Zuma) was made and announced any sooner, the NPA would have been accused of trying to influence the election of the new president of the ANC at the Polokwane conference …

"That decision was based on the strength of evidence that the NPA had marshalled against Mr Zuma and (the French company that allegedly attempted to bribe him) Thint.

"The overwhelming likelihood was … that the NPA did not require any political prompting to decide in December 2007 to prosecute Mr Zuma again. It was the evidence that called for a prosecution in the normal course."

Addressing Judge Nicholson's unhappiness over Pikoli's meetings with director-general in the Presidency Frank Chikane, the NPA pointed out that they related to the state's inquiry into the arms deal and its efforts to obtain an affidavit from Mbeki.

Judge Nicholson had also chastised Ngcuka for not charging Zuma along with his former financial adviser Schabir Shaik, who was later convicted of fraud and corruption. He described this decision as "bizarre to say the least". The judge further said Ngcuka's decision had "brought justice into disrepute" and was an "egregious breach" of the principles of prosecutorial independence.

But, says the state, these damaging findings were "sheer and unjustified speculation".

The state claims that when the NPA elected not to charge Zuma in 2003, Ngcuka believed that the prospects of successfully prosecuting him were not strong enough.

It further argues: "It does not follow from the fact that the state could prove that Mr Shaik had paid bribes to Mr Zuma with a corrupt intention that it could also prove that Mr Zuma had received those bribes with the same corrupt intention."

With acknowledgements to Karyn Maughan and The Star.