It took a long time but eventually the political might of the ANC wore down the National Prosecuting Authority, whose professional prosecutors had tenaciously sought to bring Jacob Zuma to trial.

In an Orwellian society, where one group attains domination over another, this result was hardly unexpected, but the manner in which the excuse was found for the decision certainly caught many by surprise.

Before dealing with the statement of the National Director of Public Prosecutions(NDPP) on Monday, it is instructive to recap on the key events of this six-year saga.

In August 2003, the then head of the NDPP, Bulelani Ngcuka, announced that he would indict Schabir Shaik but, a prima facie case notwithstanding, he would not charge Zuma. In June 2005, Shaik was convicted, a conviction that passed muster with 16 more judges at the appeal stages. The evidence against Zuma made it difficult to follow the Ngcuka decision and it came as little surprise that on June 20 2005 Pikoli, the new NDPP proceeded to charge Zuma.

Thus began what Kemp J Kemp, lead counsel for Zuma, described as the Stalingrad strategy: a plethora of legal challenges designed to stop the prosecution or, at the least to slow the process down as Zuma ascended politically. At the end of June 2006, judge Msimang rejected the indictment, refused the prosecution a postponement and hence the case went to partial abeyance, save that a host of further evidential challenges brought by Zuma proceeded through the courts.

On December 27 2007 Pikoli recharged Zuma, producing an 87 page indictment. Once more, the Stalingrad tactic was employed, initially with some success with Judge Nicholson before his judgement was reversed in what proved to be the last role played by the courts.

Chronology and consequences
The chronology reveals two important consequences. First, courts both found for and against Zuma, suggesting that the judicial system decided the cases in the best, impartial tradition of a judiciary, differing on legal interpretation but little more. Second, the idea punted by a range of ersatz legal experts that Zuma was faced with a long-running saga totally outside of his control is flatly contradicted by the chronology. With the Shaik conviction, the NPA had little choice but to charge Zuma. The delays were all caused thereafter by the Stalingrad strategy. Further, the courts showed that it was possible for Zuma to obtain a fair trial. So why did the NPA not take the view that the courts decide on the problems raised on the tape of McCarthy’s musings?

It is difficult to divine the answer from the statement of the NPA, but there are indications. In the passage of the judgement of Judge Louis Harms in NDPP vs Zuma, which is cited by the NDPP, a distinction is drawn between the motive to prosecute -- which is irrelevant -- and an improper purpose; that is where the decision of the NPA is not designed to prosecute legitimately. Judge Harms also noted that a prosecution is wrongful if reasonable and probable grounds for prosecuting are absent. But from the NPA statement, it is clear that the Zuma representations did not militate against the substantive merits, the fair trial defences nor the practical implications of a continued prosecution.

So why did the possible abuse of process trump all else? It is claimed that McCarthys’s timing of the charge was the smoking gun -- the factor that tainted the whole process. But the prosecution team was always going to charge Zuma, the only decision being whether to do so before the Polokwane conference.

The overall impression is that a justification was found by members of the NDPP, who were more politically sensitive to the saga. It was better to seize this chance than leave the decision to a court.

The taped conversations hardly give rise to the compelling conclusion of either an innocent person being charged to serve a political purpose or of professional prosecutors never charging. So, a dark cloud of doubt will sadly remain over this sorry saga.

This doubt will be further compounded by how the defence team gained access to the tapes, the dexterity by which former president Thabo Mbeki was left out of the abuse of process. McCarthy becomes the fall guy; Nguka is the supporting actor.

The onus shifts to Zuma. If he appoints an NPA staffed by professionals and not party politicians in prior life, and if an ANC dominated JSC, together with Zuma ensures the appointment of a demographically representative group of judges who are fiercely beholden to the Constitution and no more, some serious good can still emerge from this mess. If not, and the save Zuma campaign transforms into all politically inconvenient areas, then the rule of law can rest in peace.

With acknowledgements to Mail and Guardian.