Balance of power
Zuma in court: politics, power, prosecution
Jacob Zuma’s relationship with the National Prosecuting Authority would seem to have waxed and waned with his own political fortunes ...
Former president Jacob Zuma’s application for a permanent stay of his corruption prosecution is a life-or-death battle for him — either he walks free, or he faces a long, costly trial and a possible 25-year prison sentence.
But the case also arguably exposes how the stance of the National Prosecuting Authority (NPA) has wavered over the past two decades in sync with Zuma’s political fortunes.
After insisting for a decade that Zuma’s prosecution was deeply compromised by political interference — and withholding the crucial evidence needed to challenge the decision to drop the case against him — the NPA is now condemning the plot claims it once championed, calling them "conspiracy theories".
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This change in stance has perhaps been influenced by the fact that perceived Zuma loyalists, such as ousted prosecutions boss Nomgcobo Jiba, have been removed from the NPA — and officials like Billy Downer, who never wavered in his stance that Zuma must face trial, have been empowered to pursue prosecution.
But the fact remains: it took multiple court rulings and a fundamental power shift for the NPA to resume the case it voluntarily put on ice in 2009. And the evidence in this case, which painstakingly reveals every step of the Zuma prosecution saga, also exposes the NPA’s stance on Zuma as at best inconsistent, and at worst almost totally directed by Zuma’s status as an entrenched president.
What the Pietermaritzburg high court should make of that inconsistency, and whether it will have any bearing on whether Zuma should face trial, will be debated this week.
Zuma has sat in the dock of courtroom A of that high court several times over the past two decades — and, until now, he did so with a smile on his face.
Was the NPA’s sudden about-turn on Zuma informed by a genuine desire to do the right thing?
That’s because courtroom A was where judge Herbert Msimang refused the NPA’s application to postpone the case against him, and struck it from the roll in 2006. After exiting the overflowing courtroom, which was brimming with heavyweight political supporters, Zuma addressed a crowd of thousands, his daughter Duduzile at his side.
Just two years later, and again in courtroom A, judge Chris Nicholson threw out the case against Zuma, citing a political conspiracy to influence the prosecution by former president Thabo Mbeki and others.
Nicholson’s ruling would be used as the tool that forced Mbeki out of office just days after it was delivered. Mbeki was recalled by the ANC nine months before his term was due to end, and replaced by Kgalema Motlanthe.
Despite the Supreme Court of Appeal overturning the Nicholson ruling, Zuma’s ascension to lead the ANC — and Mbeki’s political annihilation — meant SA’s political landscape was fundamentally different from what it had been when the state first confirmed in 2003 that it was charging Zuma’s former financial adviser, Schabir Shaik, for allegedly corrupting him.
Less than a month before Zuma was inaugurated as president in 2009, the then acting NPA head Mokotedi Mpshe made an announcement that — like that of his predecessor Bulelani Ngcuka in 2003 — altered the course of SA history.
Ngcuka had revealed that, despite the protestations of the team prosecuting Shaik, he had decided not to charge Zuma because he was not sure he had a "winnable" case against the then deputy president.
Six years on, Mpshe told SA in a live media briefing that the so-called spy tape recordings of Ngcuka (who had long since retired from the NPA) and then Scorpions boss Leonard McCarthy, discussing the timing of when Zuma would be re-indicted, amounted to unforgivable political interference in his prosecution.
It was "neither possible nor desirable" for the NPA to continue with Zuma’s prosecution, he said.
Mpshe added: "Using one’s sense of justice and propriety as a yardstick by which McCarthy’s abuse of the process is measured, an intolerable abuse has occurred which compels a discontinuation of the prosecution.
"Even if the prosecution itself as conducted by the prosecution team is not tainted, the fact [is] that McCarthy, who was head of the [Scorpions], and was in charge of the matter at all times and managed it almost on a daily basis, manipulated the legal process for purposes outside and extraneous to the prosecution itself."
It took seven years and multiple court applications, rulings and appeals, but Mpshe’s decision was eventually overturned, in a ruling that was upheld on appeal.
Pretoria high court deputy judge president Aubrey Ledwaba noted in his judgment on the case that Zuma’s pending inauguration had placed Mpshe under pressure to make a call on the spy tapes.
"Mr Mpshe was subjected to such pressure that he could not afford the time and space to properly apply his mind on the implication of what he was about to do …
"He did not allow himself time to consider the question whether the very decision he was about to take could be regarded by other people facing similar charges throughout SA as a breach of the principles of equality before the law, or that it would be an abuse of process to discontinue charges against people of high profile or standing in the community."
At the heart of Ledwaba’s decision is the underlying awareness that Zuma, at the time when the spy tapes emerged, was no longer a political outsider, vying for power with Mbeki. He was about to become the president.
Over the years that followed, the NPA fought tooth and nail to defend Mpshe’s decision to drop the case against Zuma — with then acting NPA head Jiba incurring the wrath of the courts for the NPA’s "baffling" failure to hand over the spy tape recordings to the DA, which was challenging that decision in court.
It was only in 2017, when Zuma’s grip on power had been substantially loosened by a series of political scandals, allegations of corruption and damaging court rulings, that the NPA conceded in the appeal court that Mpshe had based his decision on an incorrect section of the law.
A month after Zuma reluctantly stepped down from office, the then prosecutions head Shaun Abrahams — who himself was later removed from office following a Constitutional Court ruling that his appointment by Zuma was invalid — announced that the long-dormant corruption case had been revived.
what it means
The NPA needs to assert its determination to act against corruption without fear or favour
Zuma was, once again, a political outsider. Recalled by his party, just as Mbeki had been, he no longer had the power or access to resources that had apparently protected him before. A court ruling cut off the previously untrammelled state funding of his legal fees and forced him to repay millions spent on such costs.
The question that the high court needs to decide now is whether there has been an unreasonable delay in Zuma’s prosecution — and who was responsible for that. Attached to that question is a more subtle one: was the NPA’s sudden about-turn on Zuma informed by a genuine desire to do the right thing? Or was it, simply and more cynically, the consequence of Zuma being stripped of the power that seemingly won him almost 10 years of immunity?
If the NPA is to truly experience its promised "new dawn", it needs to effectively pursue corruption suspects — not be pushed by court rulings, and directed by changing political tides, into taking action that is almost two decades overdue.