Constitutional law expert Pierre de Vos says that there are only two options open to the National Prosecuting Authority (NPA) in the Zuma corruption case: reinstate the corruption charges, or appeal the High Court’s ruling.
The North Gauteng High Court on Friday (29 April) ruled that former NPA head, Mokotedi Mpshe, acted impulsively and irrationally when he decided to drop the charges of corruption laid against president Jacob Zuma in 2009.
The court ruled that the NPA should review its decision and set it aside, saying that Zuma should face the charges as set out on the indictment in which the president was facing 783 charges of corruption.
Opposition party, the Democratic Alliance, took the ruling as a clear victory, with many Zuma critics celebrating that the president would have his day in court to answer to the charges – however Zuma supporters have argued that it is up to the NPA to reinstate the charges, and it has options.
According to De Vos, this is simply not the case. In a post on his site, Constitutionally Speaking, the expert weighed in on the ruling saying that the court’s judgement equates to an automatic re-indictment of the charges, with only one other route of action.
“At present, there is a legally valid decision by the NPA to charge President Zuma for various criminal offences. The NPA is now legally obliged to indict the President – unless it appeals the judgment,” he said.
According to de Vos, the court’s ruling made it clear – in no uncertain terms – that “Mr Zuma should face the charges as outlined in the indictment”.
Citing previous case law (“National Director of Public Prosecutions and Others v Freedom Under Law”) the Supreme Court of Appeal (SCA) made a similar ruling, giving the courts authority to allow the NPA to fulfil its Constitutional mandate to prosecute crime.
In that case, the court overturned a decision by the Commissioner of Police to withdraw criminal charges. The key part of the ruling said:
“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.”
“This means that, in the absence of an appeal, the NPA must therefore be given the opportunity to perform its constitutional duty to re-charge President Jacob Zuma on the 783 counts of corruption, fraud, and racketeering,” de Vos said.
“The NPA does not – in the absence of an appeal – have a discretion in whether it wishes to recharge the President.”
The expert noted, however, that even if/when the president faces the charges again, conviction isn’t guaranteed.
He said that if the NPA truly wanted to protect Zuma in the case, there were still ways it could “sabotage” the case – by putting inexperienced prosecutors on it, for instance, and starving them of resources.
The President could also convince a court that his right to a fair trial was fatally compromised and obtain a permanent stay of prosecution, or he could put up a substantive defence and ultimately be acquitted, he said.
“But the last option is clearly one that the President and his legal team has attempted to avoid at all cost for over than 10 years,” he said.