If prosecutor’s appeal against Nicholson ruling succeeds, ANC president will take matter to Constitutional Court, writes Ernest Mabuza

The Supreme Court of Appeal will on January 12 pass judgment on the application by the National Director of Public Prosecutions (NDPP) against the September judgment of Judge Chris Nicholson, which set aside the NDPP’s decision to charge African National Congress (ANC) president Jacob Zuma on various corruption charges.

Zuma, who attended the proceedings on Friday, told the crowds that had waited outside the Bloemfontein court that if the NDPP succeeded in its appeal, he would take the matter to the Constitutional Court.

The NPA’s lawyers also told the court that Zuma was going to apply for a permanent stay of prosecution on the charges relating to the arms deal on the basis of Nicholson’s findings of political interference in his prosecution.

But Zuma’s lawyer, Michael Hulley said on Friday night that the matter of a permanent stay of prosecution is not “on the table at the moment.

“As matters stand, my client is a free man … he is facing no charge. But this is one of the options we are considering in the event of my client being charged again.”

By the time the court makes its decision, the ANC will have finalised its nominations list for next year’s election, in which Zuma is likely to be its top candidate.

There seems to be no end in sight for the case, which started in 2003 when former NDPP director Bulelani Ngcuka said that while there was a prima facie case of corruption against Zuma, he would not charge him together with his former financial adviser, Schabir Shaik.

The issues argued at the Supreme Court of Appeal were whether Zuma was entitled to make representations to the National Prosecuting Authority before being charged; whether there was any legitimate expectation that Zuma was entitled to make representations; and whether Nicholson’s findings of political interference by former president Thabo Mbeki and two former justice ministers should be removed from his judgment.

Legal representatives of Zuma, the NDPP and former president Thabo Mbeki were grilled by five judges of the Supreme Court of Appeal who heard oral arguments on Friday.

Following Shaik’s conviction in 2005 on corruption and fraud charges, the recently appointed national director of public prosecutions, Vusi Pikoli, charged Zuma with two counts of corruption, the same charges that Shaik faced.

The case against Zuma was struck off the roll in September 2006 when Judge Herbert Msimang refused the state’s request for a postponement, but acting national director of public prosecutions Mokotedi Mpshe charged Zuma again in December last year — and added additional counts, including money laundering and racketeering.

The appeal court also heard a brief application by Mbeki’s advocate, Marumo Moerane, to intervene in order to have the “allegations of misconduct” made by Nicholson set aside.

The Constitutional Court last month dismissed Mbeki’s application to set aside Nicholson’s findings and said it was not in the interests of justice to hear Mbeki’s application.

On Friday Deputy Judge President Louis Harms told Moerane the appeal was about the order made by Nicholson on Mpshe’s decision to prosecute Zuma and not about the reasons behind the order.

“The order of the (Pietermaritzburg High) court … is that the NDPP’s decision to prosecute Zuma is set aside. You intervene for another purpose. You say your constitutional rights have been infringed,” Harms said.

Moerane said the findings of political interference were irrelevant to the issue to be decided by Nicholson. Moerane said it was permissible for the Supreme Court of Appeal to set aside the findings.

“Our complaint is that these serious findings of criminal conduct were made unfairly as far as the (former) president was concerned and that he was not given an opportunity to deal with the allegations *1,” he argued.

Moerane said the Constitutional Court in the South African Rugby Football case in 1999 had brought attention to the duty of the courts to have regard to the dignity of the head of state *2.

Zuma’s advocate, Kemp J Kemp, SC, told the court that the South African courts had found that only parties in a dispute had the right to appeal.

Harms questioned Kemp whether Zuma had made allegations against former justice ministers Penuel Maduna and Brigitte Mabandla, or the Cabinet.

“There is no allegation in your papers against the Cabinet. The problem is the findings were made in your favour," Harms said.

Adv Wim Trengove SC, for the NDPP, said section 179(5)(d) of the constitution was designed to demarcate the division of power between the NDPP and directors of public prosecutions who were located in all provinces, and was not designed to protect the rights of the accused.

Trengove said Zuma’s accusations of political interference and Nicholson’s findings on interference were not the same. “Both the accusations and the findings are irrelevant and they should be struck out.”

Trengove said Nicholson’s findings had been significant. “We have already been told that (Zuma) is going to ask for a permanent stay of prosecution because of findings of political interference,” Trengove said.

He said these findings suggested “serious misconduct” by successive national directors of public prosecutions and they would require an investigation *3. Nicholson’s conduct suggested the possibility of “criminal misconduct” by Mbeki, Mabandla and Maduna.

Trengove said Nicholson’s findings would cause injustice if they were allowed to stand.

Judge Ian Farlam said Pikoli’s decision in 2005 no longer stood as it was overruled by Msimang’s judgment in 2006 when he struck the corruption case against Zuma off the roll.

“Mpshe said he was not reviewing the case (in September 2007),” Judge Azhar Cachalia said.

Kemp argued that striking the case off the roll terminated the charges against Zuma, but did not terminate the decision to prosecute.

Farlam persisted with his questions and told Kemp that once the case had been struck off the roll, a new decision *4 on whether to charge had to be taken.

Kemp said the statement made in 2003 that Zuma would not be charged gave the ANC president a legitimate expectation that he would be given an opportunity to make representations when the NDPP decided to review his decision. He also said Ngcuka afforded Zuma an opportunity to make representations before he took his decision in 2003.

This was denied by Trengove, who said Zuma was asked a number of questions about the case. “He was never afforded an opportunity to make representations on whether he should be prosecuted or not.”

Harms challenged Kemp to show him the wording in Ngcuka’s press statement that Zuma would be given an opportunity to make representations.

Kemp conceded there was no such sentence in Ngcuka’s statement, to which Harms replied that “there was no promise”.

Harms also accused Zuma of not being prepared to make representations when the prosecution wanted documents from the accused. He was referring to the dispute on search warrants that the National Prosecuting Authority obtained in July 2005.

“You say they should have disclosed an entire case?” Cachalia asked.

Trengove said if Zuma persisted in insisting that the Pikoli decision was not undone, it would mean the decision survived Msimang’s judgment. 

With acknowledgements to Ernest Mabuza and Business Day.