Galling as it may be to accept, President Jacob Zuma will probably never have his day in court.
Watching argument unfold in the Supreme Court of Appeals (SCA) before a full bench last Thursday, Mr Zuma’s counsel’s clever strategy in this impossibly long running saga, played out to conclusion, hidden behind a staggeringly disingenuous admission: that the decision by then acting National Director of Public Prosecutions (NDPP), Mokothedi Mpshe, to withdraw the 783 charges against Mr Zuma, was irrational.
Our legal system makes no provision for any form of censure against the applicants – Mr Zuma and the National Prosecuting Authority (NPA) – or their respective legal teams for the disgraceful waste of taxpayers money – now estimated at R30 million – in pursuing a matter all the way to the SCA, only to effectively agree with the ruling handed down by by a full bench of the North Gauteng High Court, declaring Mr Mpshe’s decision irrational.
Be that as it may, what will happen when the SCA hands down judgment in this matter, which it reserved after only four hours of argument?
That a prima facie case has always existed against Mr Zuma was acknowledged by both applicants’ counsel, despite NPA counsel Hilton Epstein trotting out the old 2009 chestnut, that Mr Zuma’s prosecution was driven by political motives.
The bench, headed by Justice Mohamed Navsa, made its irritation clear in dissecting the applicants arguments, when he said: “You have a decision to prosecute which has thus far been unchallenged. All that remains is that the decision to prosecute is reinstated.”
And this is where it gets interesting. If the SCA upholds the ruling of the court a quo, that Mr Mpshe’s decision to set aside charges was irrational, then the charges are automatically reinstated.
All that remains to be done, is for the matter to be set down on the court roll.
There appears to be some legal confusion about what must happen next: does the North Gauteng High Court, where the matter would be heard, set it down on the court roll, or does it fall to NDPP Shaun Abrahams to proceed wtih the prosecution?
If the latter, it places Mr Abrahams in something of a cleft stick, because that would be an overt decision on his part to proceed with a prosecution he has assiduously laboured to avoid.
His determination to sidestep the responsibility in this regard, emerged in the following exchange between Judge Navsa and Mr Epstein.
“Why is this an anxiety? I don’t get it,” says Judge Navsa.
“Mr Abrahams wants to know what to do,” replies Mr Epstein.
And there you have it. If, in its ruling, the SCA instructs Mr Abrahams to reinstate the prosecution he can do so, and sidestep responsibility.
But the bench quickly poured cold water on that notion, pointing out, rightly so, that the separation of powers doctrine precludes it from spelling out what procedures are to be followed after its ruling.
It falls to Mr Abrahams, well-known for something of a deficit in the vicinity of his backbone, to take whatever action is necessary.
But as proceedings unfolded, it became clear that what the applicants’ counsel really want, is for the court to refer the matter back to the NPA for reconsideration.
If that were to happen, it would afford Mr Abrahams the opportunity to once more set aside the charges against Mr Zuma, but not using the original argument, of political manipulation.
The obvious strategy emerged in argument, when Justice Azhar Cachalia mused: “It might be, nine years later, that the NDPP says that a key piece of information has disappeared, in which case (Mr) Abrahams would be within his right not to continue the prosecution.”
And in one fell swoop, we are back where we started, when in 2009, Mr Mpshe set aside the charges against Mr Zuma.
Were that to happen, the DA’s James Selfe made it clear the party would immediately challenge the decision, and the whole circus starts up again.
It’s taken eight years to get to this point, where the possibility of Mr Zuma having his day in court is tantalisingly close.
How much longer will it take to get to this point once this new legal process has run its course?
Another eight years? By which time, what key piece of evidence will have disappeared; which key State witness will have died?
And this is where the ultimate objective of Mr Zuma’s legal counsel’s Stalingrad strategy, revealed way back in 2009, becomes apparent: fight it for long enough for the case against Mr Zuma to get to the point where a successful prosecution is no longer possible.
All that remains at that point is for Mr Zuma to petition the NPA for a permament stay of prosecution, which will likely be granted.
Even if the NPA then issues a certificate of private prosecution to Gerrie Nel and Afriforum, what are the chances that Mr Nel will have anymore prospect of success in pursuing Mr Zuma than would the NPA’s prosecution team?
And so the ultimate injustice will be visited upon us by our highly regarded and fiercely independent judicial system.
