The beginning of the end for Msholozi

Amid the clinking of champagne glasses over the North Gauteng High Court judgement on Thursday, a breath of sanity must prevail.

Jacob Zuma is not going to suddenly have an indictment served on him, and appear in the dock in the next few weeks to face the 783 charges he would have faced, had Mokotedi Mpshe not irrationally set aside his prosecution on April 1 2009. Far from it.

That the charges against Jacob Zuma are automatically reinstated goes without question, despite what a number of commentators are saying, and here’s why.

In September 2013, the North Gauteng High Court handed down a judgement ordering the head, Commercial Crimes Unit and the National Director of Public Prosecutions (NDPP) to re-instate fraud, corruption, murder and related charges, against then national crime intelligence head Richard Mdluli, in a matter brought before the court by Freedom Under Law (FUL).

The court also granted a mandatory order sought by FUL, which compelled the NDPP “to take such steps as are necessary to ensure that criminal proceedings for the prosecution of the criminal charges under the aforesaid cases are re-enrolled and prosecuted diligently and without delay.” (Other orders were made relating to the reinstatement of Mdluli as head of crime intelligence, and the suspension of disciplinary proceedings against him as well.)

The entire judgement was taken on appeal by the NDPP, and in April 2014, the Supreme Court of Appeals (SCA) handed down a judgement which upheld the lower court’s ruling to reinstate charges and disciplinary proceedings against Richard Mdluli, but it set aside the ruling, ordering the NDPP to proceed expeditiously with the prosecution and the commissioner of police with the disciplinary process against Mdluli, on the grounds that they transgressed the separation of powers doctrine.

As Judge Brand noted in his ruling: “(The separation of powers) doctrine precludes the courts from impermissibly assuming the functions that fall within the domain of the executive. In terms of the Constitution, the NDPP is the authority mandated to prosecute crime, while the Commissioner of Police is the authority mandated to manage and control the SAPS.

“As I see it, the court will only be allowed to interfere with this constitutional scheme on rare occasions and for compelling reasons. Suffice it to say that in my view this is not one of those rare occasions and I can find no compelling reason why the executive authorities should not be given the opportunity to perform their constitutional mandates in a proper way.”

Importantly for last week’s judgement, Judge Brand added: “The setting aside of the withdrawal of the criminal charges and the disciplinary proceedings have the effect that the charges and the proceedings are automatically reinstated and it is for the executive authorities to deal with them. The court below went too far.”

This is the legal precedent upon which the automatic reinstatement of charges against President Zuma is founded, and in effect sets the matter back to the day before Mr Mpshe made the decision to discontinue the prosecution.

That decision was based on the alleged political interference by then Directorate of Special Operations (DSO) head, Leo-nard McCarthy, in the timing of the serving of the indictment on Jacob Zuma, who faced off with Thabo Mbeki at the Polokwane elective conference in December 2007 over the presidency of the ANC.

Mr Mpshe made his final decision after listening to a recording of a conversation between then NDPP Bulelani Ncuga and Mr McCarthy, contending that said political interference made it impossible to proceed with the prosecution, as it would compromise the NPA. Nowhere in his reasoning did he suggest that the prosecution was in any way tainted. On the contrary. Right up to the point that he discontinued the prosecution he, along with the entire prosecutorial team, was adamant that the case against President Zuma was solid.

This is born out in Thursday’s findings: “Having regard to the conspectus of evidence before us, we find that Mr Mpshe found himself under pressure and he decided to discontinue the prosecution of Mr Zuma and consequently made an irrational decision. Considering the position in which he found himself, Mr Mpshe ignored the oath of office which demanded of him to act independently and without fear or favour. It is thus our view that the envisaged prosecution against Mr Zuma was not tainted by the allegations against Mr McCarthy. Mr Zuma should face the charges as outlined in the indictment.”

It is clear that the responsibility now rests with NDPP Shaun Abrahams to ensure that President Zuma faces the charges in the indictment. It is up to him to take the next step, presumably that of approaching the court to have the matter set down for trial, but it is entirely reasonable that Mr Abrahams will wait the 21 days provided for in the Criminal Procedure Act (Act 51 of 1977 as amended) to see whether or not an appeal is lodged by any of the respondents, but that President Zuma will lodge an appeal is self-evident. After all, he’s spending our money when he does so, and he wants to at least get beyond the August 3 local government election before anything else happens.

Whether or not the SCA will grant leave to appeal remains to be seen, and if that appeal process does proceed and the lower court ruling is upheld, there is the inevitable petitioning of the Constitutional Court for leave to appeal on constitutional grounds. If the Constitutional Court chooses to hear the matter, it is likely that only by the time President Zuma’s term of office as president has come to an end, will he face the prospect of fighting those 783 charges in his retirement. Shame.