The Supreme Court of Appeal has rejected, with costs, President Jacob Zuma’s appeal in his long running battle to avoid prosecution for fraud and corruption.
Handing down Justice Mahomed Navsa’s judgment on behalf of a unanimous court, Supreme Court of Appeal Justice Eric Leach said the High Court’s judgment – that the decision to drop corruption charges against Zuma was irrational – “cannot be faulted”.
Zuma and the National Prosecuting Authority (NPA) wanted the appeal court to overturn the High Court’s decision, which found that the 2009 decision by acting prosecutions head Mokotedi Mpshe to drop the 783 counts of fraud, corruption and racketeering, was irrational.
Handing down judgment on Friday, Justice Leach pointed to a number of ways in which Mpshe’s decision was irrational – including the fact that the prosecution team had been excluded from the decision.
He said the picture that emerged was one in which Deputy National Director of Public Prosecutions Willie Hofmeyr and Mpshe were “straining to find justification” for discontinuing the prosecution.
Mpshe also wrongly invoked and relied on section 179(d) of the Constitution when he made the decision, said Justice Leach.
He said it was difficult to understand why the present regime at the NPA believed the decision could be defended.
The SCA’s decision was not a surprise after counsel for the NPA and Zuma conceded that Mpshe’s decision was taken under the wrong section of the Constitution and that – in line with an earlier judgment of the Constitutional Court, this invalidated the decision.
Either of the two may yet approach the Constitutional Court or they may decide to drop the the appeal route.
Zuma’s counsel Kemp J Kemp SC hinted that their next move would be to approach the NPA to once again consider Zuma’s representations.
At the hearing, Kemp said “what then must happen is that the representations would have to be considered by the NPA, because they have never been”.
He added that, even if the court said Mpshe’s decision had been irrational on further, substantive grounds, “then someone has to make a rational decision on our representations”.
Zuma’s prosecution was discontinued by Mpshe — based on the “spy tapes”.
The tapes, given to the National Prosecuting Authority (NPA) as part of Zuma’s “representations” as to why he should not be prosecuted, were recordings of telephone conversations, mostly between former Scorpions head Leonard McCarthy and the first national director of public prosecutions, Bulelani Ngcuka.
They revealed that McCarthy had consulted extensively with Ngcuka, a passionate Mbeki supporter, about when to indict Zuma — with a view, said Zuma, to bettering Mbeki’s chances of winning the ANC elective conference in Polokwane.
Mpshe’s decision was immediately challenged by the Democratic Alliance (DA) in a case that dragged on for 8 years.