Decisions made by the public protector are binding, unless reviewed by a court, President Jacob Zuma’s legal team told the Supreme Court of Appeal (SCA) this week. And that means the National Prosecuting Authority (NPA) violated Zuma’s rights.
Zuma and the NPA this week separately filed papers in their attempts to overturn a 2016 high court decision that effectively reinstated corruption charges against Zuma, in the Democratic Alliance’s long-running battle to have Zuma face those charges.
Zuma said in heads of argument to the SCA that in May 2004, then public protector Lawrence Mushwana investigated a complaint by Zuma, when he was deputy president, about the way the NPA had dealt with allegations of corruption related to the arms deal.
In his complaint at the time Zuma said it had been “extremely prejudicial” to him when then NPA head Bulelani Ngcuka had said Zuma would not be prosecuted for corruption, even though there was a “prima facie case” against him.
“The public protector subsequently held that the NPA had violated Zuma’s rights by the manner of decision-making and announcement,” Zuma’s lawyers told the SCA.
“This decision was never reviewed and is binding. The CC [Constitutional Court] has held PP [public protector] findings and decisions to be binding on organs of state.”
Zuma’s lawyers did not mention that Zuma had, for years, resisted the notion that the public protector had binding powers; he fought fiercely against repaying the state for upgrades to his Nkandla compound. It was only when the Nkandla matter was heard in the Constitutional Court that Zuma’s counsel conceded that he had to comply with remedial action directed by the public protector – and so helped set the precedent his legal team is now using in his defence.
In April 2016 a full bench of the high court in Pretoria ruled that then NPA head Mokotedi Mpshe had been irrational when he, in 2009, decided to drop the prosecution against Zuma. That decision was based on secret recordings of telephone calls – that would later come to be known as the spy tapes – showing that the timing of the indictment against Zuma was politically motivated.
Lawyers for Zuma and the NPA this week told the SCA that the high court had made several mistakes, including holding that Zuma is now a criminal accused again.
It is clear, Zuma’s team said, that the high court wanted the corruption charges against Zuma “to revive”, but because the DA had never asked for this to happen there was “no factual basis upon which the court could pronounce so”.
Instead, the Zuma camp argues, the decision to prosecute (or not) Zuma should start from scratch again, with a new opportunity for Zuma to make representations and a new decision – by the current NPA head Shaun Abrahams, appointed by Zuma in 2015—on whether he should face a criminal trial.