Publication: Mail and Guardian Issued: Date: 2003-09-15 Reporter: Sapa

Counsel : Zuma Can't Use Court to Save Reputation



Mail and Guardian

Date 2003-09-15



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Deputy President Jacob Zuma cannot use the court process to save his reputation, counsel for the national director of public prosecutions said in the Pretoria High Court on Monday.

"The courts should not be used as fields for politicians to salvage their reputations in urgent applications," contended Marumo Moerane, SC, who also appears for the National Prosecuting Authority and the Scorpions.

Zuma has brought an urgent application against the three entities to obtain the original hand-written encrypted French version of a fax that allegedly implicates him for securing a bribe of R500 000 a year from a company involved in the country's multibillion-rand arms deal.

Zuma's financial adviser, Schabir Shaik, is also implicated in the bribe.

Neil Tuchten, SC, argued that Zuma was the victim of a political process, and that the director of public prosecutions [Ngcuka] was doing a "political hatchet job".

The latest step in the political process was the respondents' refusal to give the document to Zuma, he said.

Tuchten referred to an offer Zuma claimed Ngcuka had made to him through a senior advocate in May this year.

According to Zuma's affidavit, the advocate told him that "the investigations being conducted could be made to go away against all concerned", if the deputy president answered a set of "innocuous" questions compiled by the National Directorate of Public Prosecutions (NDPP), and if Shaik pleaded guilty to certain "minor" charges.

Tuchten described this offer as corrupt, naive and unfortunate.

"It was designed to achieve some political success for [the NDPP], to limit the difficulties which [the NDPP] found himself in establishing a case against [Zuma].

"Any senior politician accepting an offer like this from a functionary ... would place himself in the debt of that functionary for ever."

In his affidavit, Zuma accused Ngcuka of pronouncing judgement on him.

That was because Ngcuka had said in a media statement that there was a prima facie case against the deputy president, but that he would not be prosecuted because the prospects of success were not strong enough.

Tuchten described Ngcuka's statement as part of a process of assault against his client's dignity.

"There is a deliberate policy at play to harm the dignity of the applicant."

Two days later, the NDPP released a draft charge sheet in the case against Shaik. The release of such an elaborate charge sheet at such an early stage of a case was most unusual, Tuchten said.

"Why was it necessary to draft a charge sheet containing so much material so prejudicial to [Zuma]?"

The predictable result was a media storm, he said.

A Mail and Guardian headline read: "Zuma for sale."

"For any human being to be told that he is for sale is the most terrible invasion of his dignity. [Zuma] is a human being entitled to the same rights and protection than any other South African."

To protect his dignity, Zuma had to be given the material he needed to enable him to respond to the allegations against him, Tuchten said.

"As we speak, [Zuma] is suffering harm in the court of opinion."

That was why his application should be handled on an urgent basis. If placed on the ordinary court roll, it would only be heard early next year, he said.

But Moerane said any urgency was of Zuma's own making.

"It is common cause that [Zuma] has been aware of the hand-written encrypted fax as long ago as December."

He should also have been aware of media reports incriminating him.

"There is no acceptable reason why the application could not be brought in the ordinary court."

With regard to Zuma's assertion that Ngcuka had already judged him, he said: "[The NDPP] has the discretion as prosecuting authority to prosecute persons. The mere fact that there is a prima facie case does not oblige him to prosecute."

Zuma's urgent application appeared to be a stratagem to obtain, long in advance, documents he might need for a civil case.

The deputy president could sue for defamation if he wished.

What Zuma said about the senior advocate was based on hearsay, and not supported by an affidavit by that person. Besides, Ngcuka had a different version, Moerane said.

Judge Jerry Shongwe is to rule later in the day on whether the application should be treated on an urgent basis.

With acknowledgements to Sapa and the Mail & Guardian.