Desperate, out of options

Shaun Abrahams. PHOTOGRAPH: Jonisayi Maromo / ANA

Poetic justice: that the very person Jacob Zuma hand-picked to keep him out of jail, ends up being backed into a corner from where he had no option but to reinstate 16 charges on multiple counts of fraud, racketeering and money laundering.

His newfound prosecutorial zeal notwithstanding, this is not a decision Shaun “The Sheep” Abrahams took willingly.

In hindsight, he was probably desperately hoping that he would remove him from office, in accordance with the North Gauteng High Court’s Friday December 8 ruling. The court found that Mr Abrahams’ appointment was unlawful and that he should vacate the office of National Director of Public Prosecutions (NDPP) and be replaced with an appointee selected by then Deputy President Cyril Ramaphosa.

The reason then President Jacob Zuma couldn’t choose Mr Abrahams’ replacement, said the court, was because Mr Zuma, facing an 18 charge 783 count indictment which might have to be served on him by said replacement, was conflicted.

But master strategist, President Cyril Ramaphosa, did what he was bound to do by law: nothing.

When Mr Abrahams, the National Prosecuting Authority (NPA) and Mr Zuma – the latter before even studying the judgment – took the ruling on appeal, they were doing what Mr Zuma’s counsel, Kemp J Kemp, vowed in a 2007 proceeding in the Durban High Court with his Stalingrad Strategy pronouncement: delay the inevitable by every means possible and at whatever cost.

The strategy worked, because in 2009, then acting NDPP Mokotedi Mpshe withdrew the charges.

Eight years, R30-odd million of taxpayers money – R15.3 million on Mr Zuma’s defence alone – and numerous court proceedings later, the charges were reinstated, when on Friday morning, Mr Abrahams announced that he would proceed with the prosecution, and had referred the matter to the Director of Public Prosecutions in Pietermaritzburg, where the original indictment was served.

Mr Zuma was finally out of options, or so it seemed.

By Sunday night, the nation learned, through Mr Zuma’s lawyers apparently, that he was considering taking Mr Abrahams’ decision on review.

As rapidly as the prospect of Mr Zuma finally having his day in court loomed large, it equally rapidly began to recede. Stalingrad Strategy, remember?

In Mr Kemp’s own words in that fateful 2007 court proceeding: “This is not like a fight between two champ fighters. This is more like Stalingrad. It’s burning house to burning house.”

And this latest sally is just one more burning house in a long-running strategy to impede the judicial process until Mr Zuma dies, or until the prospects of a successful prosecution decline to the point where the NPA has no choice but to withdraw the charges and grant Mr Zuma a permanent stay of prosecution.

A key consideration in this matter, is the shock admission in the Supreme Court of Appeals (SCA) by Mr Kemp and the NPA’s counsel in October last year, that Mr Mpshe’s 2009 decision to withdraw charges – the cornerstone of the Zuma legal team’s argument in every court proceeding – was indeed invalid.

In its judgment, the court was scathing in its criticism of the NPA: “(I)t beggars belief that the present regime at the NPA, on its own version of events, saw fit to defend Mr Mpshe’s decision as being rational. A question one might rightly ask is why it took so long to come to the realisation at the eleventh hour that the case for both the NPA and President Zuma had no merit.” And, of course, the same question must be put to Mr Zuma’s counsel.

During his brief announcement on Friday, Mr Abrahams noted that an NGO had submitted a motion for a permanent stay of prosecution on behalf of Mr Zuma in the Cape High Court, which he had instructed the State Attorney to oppose.

A report in a Sunday newspaper averred that Mr Zuma’s legal team plans to cite the ANC’s black economic empowerment policy as a defence when the matter comes to trial. Talk about hedging your bets.

None of this ought to come as a surprise, since it is in keeping with the Stalingrad Strategy of launching assaults on multiple fronts while preparing for the worst case scenario: Mr Zuma standing trial.

But what are Mr Zuma’s chances of success? Not terribly good if one examines the facts.

In setting aside Mr Mpshe’s decision to withdraw charges in April 2016, the North Gauteng High Court was scathing in its criticism of the NPA and Mr Zuma’s counsel in their respective machinations to keep him out of court.

The SCA was equally scathing in its judgment in October last year, when it upheld the court a quo’s ruling, particularly when both counsel – the NPA’s and Mr Zuma’s – admitted, literally at the eleventh hour, that their principal argument in support of Mr Zuma not facing charges was constitutionally flawed. They had premised eight years worth of litigation and R30 million of taxpayers’ money on a legally flawed defence.

In considering any application for a review of the validity of Mr Abrahams’ reluctant decision to proceed with the prosecution of Mr Zuma, the court will have reviewed every single judgment handed down in this long-running saga.

It will also consider that in making representation to Mr Abrahams prior to his decision to proceed with prosecution, Mr Zuma advanced no argument not previously ventilated in open court.

The court will not take kindly to further wasting of its time, leaving Mr Zuma no place to hide. He’ll have his day in court.