In a surprisingly rapid response, the North Gauteng High Court has denied Jacob Zuma and the NPA leave to appeal its so-called Spy Tapes ruling of last month, in which it set aside the 2009 withdrawal of 783 charges against Jacob Zuma by then NPA head, Mokotedi Mpshe.
A full bench of the court, headed by Deputy Judge President Aubrey Ledwaba, found that another court would have difficulty coming to a different conclusion.
Judge Ledwaba pointedly said that the applicants invented novel legal grounds by misinterpreting sections of the judgment, specifically: “We are of the view that the applicants have also raised irrelevant and non meritorious factors to try and support their contention and arguments that there are other factors that should be considered.”
And even more damning, Judge Ledwaba noted that the appeal court has already ruled on the effect a review has on a decision, citing Supreme Court of Appeals (SCA) Judge JA Brand in the matter of the National Director of Public Prosecutions (NDPP) vs Freedom Under Law (FUL), which sought to have the withdrawal of criminal charges against then national crime intelligence boss Richard Mdluli, set aside.
Judge Ledwaba quoted thus from the Brand judgement: “…The setting-aside of the withdrawal of criminal charges and the disciplinary proceedings has the effect that the charges and the proceedings are automatically reinstated, and it is for the executive authorities to deal with them…”
The final nail in the coffin of the applicants appeal quest was even more damning.
Judge Ledwaba noted that while the applicants had accused the court of breaching the separation of powers doctrine by setting aside Mr Mpshe’s withdrawal of charges against Jacob Zuma, Mr Zuma’s counsel had argued that the court should have considered referring the matter back to the prosecution.
But as Judge Ledwaba points out in the judgment, this would have constituted a breach of the separation of powers doctrine.
The court was at pains to point out that it had not in its judgment suggested that the prosecuting authority does not have the power to withdraw charges in a matter, but that the court does have the power to take such decisions on review, reiterating that the matter of Mr Zuma’s guilt or innocence is a matter for a court, and not the prosecuting authority, to decide.
The applicants have two avenues open to them right now. They can petition the SCA directly for leave to appeal, but the prospects of success are limited.
Even in the highly unlikely event of the SCA granting the applicants leave to appeal, the chances of the appeal being upheld, are virtually non-existent.
The other avenue is to petition the Constitutional Court for direct access, but in order for that petition to succeed, the applicants must show that the matter is constitutional in nature.
Inevitably, they will argue that the manipulation of the timing of preferring charges against Mr Zuma – the prosecutorial misconduct at the heart of Mr Mpshe’s decision – compromised Mr Zuma’s constitutional right to a fair trial.
Except that the original judgment found that while there might well have been prosecutorial misconduct on the part of Leonard McCarthy, this did not in any way compromise Mr Zuma’s right to a fair trial, nor did it negate the 783 criminal charges which he faced, and still faces.
Which means this is quite simply a criminal, rather than a constitutional matter, and the Constitutional Court will likely decline the petition for direct access.
But at the heart of the matter, is the need to play for time, and in order to do that, the applicants will use every legal avenue open to them: petition the SCA for leave to appeal, and when that is denied – or if granted and the appeal is struck down – petition the Constitutional Court for direct access.
After all is said and done, and the matter of the 783 charges against Mr Zuma still stands, the NPA will have to decide what to do: either proceed with prosecution as it should long ago have done, or try to find other grounds for withdrawing charg-es.
But it would look mighty peculiar if only after all avenues of appeal are exhausted, and Mr Zuma must have his day in court (which he has always insisted he wants), the NPA then decides to withdraw the charges.
If that does happen, we’ll have come full circle in this matter, and the DA will undoubtedly challenge the NPA’s decision to withdraw charges, as it did Mr Mpshe’s decision, in the courts.
And this will, of course, all be at taxpayers’ expense.