“It is doubtful that a decision in this case will be the end of the continuing contestations concerning the prosecution of Mr Zuma.”
With these words, in paragraph three of the unanimous judgment of a full bench of the Supreme Court of Appeals handed down on Friday morning, Acting Judge President Mahomed Navsa, gave substance to the worm of suspicion that emerged, when counsel for the appellants – the NPA and President Jacob Zuma – flabbergasted the court by conceding that the 2009 decision of Acting National Director of Public Prosecutions, Mokotedi Mpshe, to discontinue the prosecution of Mr Zuma on 783 serious criminal charges, including charges of racketeering, corruption, money laundering and fraud, was indeed irrational.
The concession was so flabbergasting, because for eight years, through many court proceedings, the appellants’ entire case was predicated on the rationality of Mr Mpshe’s decision, that because of political meddling by then Scorpions boss Leonard McCarthy and then NPA head Bulelane Ngcuka, Mr Zuma’s right to a fair trial had been compromised, and the prosecution should therefore be set aside.
This unexpected volte face begs the question: why now, after stubbornly refusing to accept the detailed and legally unassailable prior judgments which spelled out why Mr Mpshe’s decision was irrational, did the appellants’ counsel do an about face in the opening salvos of argument of the matter before the SCA?
No sooner had Judge Eric Leach finished reading the damning and scathing judgment, which upheld North Gauteng High Court Judge Aubrey Ledwaba’s ruling which set aside Mr Mpshe’s decision on grounds of irrationality, and reinstated the charges against Mr Zuma, than events that unfolded, which answered this question, and in turn, answered the question, kuphi kuze kube manje, Msholozi? (Where to now, Msholozi?).
As social media channels lit up with the news that Mr Zuma would probably soon have his day in court, his lawyer, Michael Hulley, said in an interview that he would be making representations to the National Director of Public Prosecutions (NDPP) Shaun “The Sheep” Abrahams persuant to once more having the charges against his client set aside.
Mr Hulley is exploiting a fault line in the edifice of Mr Mpshe’s justification for his 2009 decision: that Mr Mpshe had, in effect, reviewed and set aside his own decision to proceed with the prosecution of Mr Zuma, which his mandate prohibited him from doing.
What Mr Hulley wants Mr Abrahams to do instead, is review Mr Mpshe’s original decision to proceed with the prosecution of Mr Zuma, and set it aside, and he will base his representations on a recent and ostensibly unconnected event – the withdrawal of the conclusions and recommendations in the KPMG SARS rogue unit report.
That report, now called into question by KPMG’s decision to withdraw the conclusions and legal recommendations, is nonetheless viewed by SARS commissioner, Tom Moyane, and KPMG forensic investigator, Johan van Der Walt – who prepared it – as gospel. So what you might ask? Well here’s the thing.
In 2003, Mr van der Walt and KPMG prepared a forensic report into the allegations of fraud committed by Shabir Shaik, Mr Zuma’s finiancal advisor at that time.
That report played a central role in securing a conviction, for which Mr Shaik was sentenced to 15 years in prison.
After Mr Shaik’s conviction, this report played a central role in building the case against Mr Zuma, and it is clear that Mr Hulley plans to exploit this avenue, in pursuit of having charges against Mr Zuma set aside.
Despite Judge Hilary Squires refuting that Mr Van Der Walt’s reputation was tarnished during the Shaik trial, the significant questions raised about the veracity of the SARS rogue unit report prepared by Mr Van Der Walt, provide Mr Hulley with the uncertainty he requires to call into question, the original decision to prosecute Mr Zuma.
Mr Hulley has already requested that Mr Abrahams delay serving afresh the indictment on his client, pending receipt of his representations justifying, on ostensibly rational grounds, the setting aside of charges against Mr Zuma.
And that ball will soon sit in Mr Abrahams’ court.