Constitutional law expert, Pierre de Vos says that the National Prosecuting Authority’s (NPA) appeal against the High Court ruling suggesting that President Jacob Zuma should face charges of corruption is a “long shot”.
In April, the North Gauteng High Court 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.
On Monday (23 May) both the NPA and President Jacob Zuma announced their intentions to appeal the ruling, on the grounds that the court had erred in deeming Mpshe’s actions as irrational.
According to De Vos, the appeal came as no surprise, as he had previously pointed out it was the only other alternative to reinstating the charges as ordered.
“The NPA either had to appeal the judgment or prosecute President Zuma – and we know that it does not have the appetite to do the latter,” he said.
“It is not often that the prosecuting authority will fight tooth and nail not to have to prosecute somebody whom its own prosecutors have consistently said would be found guilty of various crimes if he were ever to be prosecuted – but ever since acting National Director of Public Prosecutions (NDPP), Mokotedi Mpshe, decided to drop all criminal charges against Jacob Zuma, this is exactly what the NPA has continued to do,” De Vos said.
Why the appeal should fail
According to de Vos, the appeals are lining up for failure. The expert argued that for an appeal to stand, the NPA would have to raise “pressing legal issues” to be tested by the Supreme Court of Appeal (SCA).
“At first blush, none of the (grounds) appear to raise pressing legal issues,” he said.
The law expert cited standing case law which provides clear rulings on the matters being argued by the NPA, and provided insight as to why the appeal would – or at least should – fail:
1. The grounds are vague
The NPA is applying for leave to appeal on 6 grounds – most of which are vague, undefined and overlap, he said.
Primarily, the NPA is arguing that Mpshe acted rationally in dropping the charges, as he assessed it was not in the “public interest” to charge Zuma of the crimes.
“As the ‘public interest’ is a malleable concept…this argument will be difficult to sustain in the light of the established SCA precedents,” de Vos said.
2. Reasons for dropping the case were untested
The reasons used by the NPA to drop the case – that there was undue political interference – went untested, complicating the NPA’s argument.
“Here Mpshe relied on untested allegations to drop the charges, allegedly to safeguard the integrity and independence of the NPA. But as the High Court found, the NPA failed to test the allegations of interference,” he said.
3. The NPA did nothing about the “interference” claims after
De Vos pointed out that it is not easy to argue that the process followed was rational, when the NPA never pursued the person who was alleged to have tried to influence the timing of the indictment of Zuma.
“Surely, if it was serious about its credibility it would have launched an investigation against the person who was alleged to have attempted to abuse the process,” he said.
The NPA will not succeed
Ultimately, the NPA would have to convince the SCA that it has almost “unlimited discretion” to choose not to prosecute someone, on vague and untested grounds, de Vos said.
“Predicting the outcome of an appeal – especially before the papers are filed and the case is argued in court – is a difficult thing to do. It is usually best avoided to predict the outcome of an appeal,” he said.
“However, in this case I will make an exception and predict that the NPA will not succeed with its appeal before the SCA.”
“Given the fact that the legal precedent is so heavily stacked against the NPA – and given what the SCA has previously said about the charges against President Zuma – I suspect the NPA has about as much chance of winning the appeal before the SCA than I have of scoring the winning goal for Bafana Bafana in the Soccer World Cup final,” he said.
You can read De Vos’ full reasoning on his website.