Publication: Cape Times Issued: Date: 2004-05-31 Reporter: Angela Quintal

Zuma May Have to Testify in Shaik Trial



Cape Times

Date 2004-05-31


Angela Quintal

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Deputy President Jacob Zuma may be called as a state witness in the corruption trial of his financial adviser Schabir Shaik, according to correspondence between the National Prosecuting Authority (NPA) and Public Protector Lawrence Mushwana.

In a letter to Mushwana dated March 5, Scorpions head Leonard McCarthy said the state had not yet decided whether to call Zuma as a witness in support of its case.

McCarthy also did not rule out the possibility that the trial court might wish to subpoena Zuma to testify "if the interests of justice so dictate".

For this reason the NPA had opted not to make any reference to "the responses provided by the deputy president during the course of our investigation", he wrote.

The correspondence sheds a different light on the public spat between Mushwana and NPA head Bulelani Ngcuka, including the refusal of the NPA to hand over information to the public protector because of the sub judice rule and its alleged failure to co-operate with Mushwana.

McCarthy's letter refers to Mushwana's appearing to have reversed positions the public protector had adopted in meetings with then-justice minister Penuell Maduna, Ngcuka and his three deputies.

On what these were, NPA spokesperson Sipho Ngwema told the Cape Times that Mushwana had been taken through the issues, including how the decision not to prosecute Zuma for corruption had been arrived at, the investigating team's recommendations, the contents of a summary report to Maduna, and the rationale for announcing the decision not to prosecute.

Ngwema said that after a discussion of the meaning "prima facie", Mushwana had agreed that in the absence of access to full facts, the NPA decision not to prosecute Zuma for corruption might well be correct.

Mushwana had also accepted that public interest might well play a role in deciding whether to prosecute, Ngwema said.

The NPA had therefore been shocked when Mushwana "somersaulted" from this position in a letter dated February 25 to Maduna.

In this letter, Mushwana states that on the "basis of the summary of substantial facts" that accompanied the Shaik indictment, "we cannot come to any other conclusion than that the 'substantial fact' discovered during the criminal investigation clearly indicates corrupt conduct on the part of the deputy president".

"The summary shows that there are sufficient substantial facts to justify a reasonable prospect of success of a conviction against the deputy president," Mushwana wrote.

"In our understanding of the provisions of the prosecuting policy, the public interest would demand that Mr Zuma be prosecuted under the circumstances."

This view, however, was not supported by the report Ngcuka had submitted to Maduna, Mushwana said.

"If, on the other hand, our understanding of the summary is not correct and there is no prima facie evidence against Mr Zuma, as it appears from the report (to Maduna), the public statement made by Mr Ngcuka in this regard might have been unfair and improper."

Mushwana asked Maduna to respond to these concerns.

Replying on behalf of Maduna and Ngcuka in the March 5 letter, McCarthy wrote: "I am not sure I understand what you want us to respond to. In our view, the very basis of your attempted review of our decision not to prosecute is highly questionable, if not illegal."

If the situation was as the public protector saw it, McCarthy said, then Mushwana should have done the prudent thing and sought a high court order to review the Scorpions' decision not to prosecute Zuma.

The battle between Mushwana and Ngcuka is to be played out in parliament, with a special committee - expected to be established later this week - processing Mushwana's report.

Mushwana found the deputy president's constitutional rights to dignity had been violated by Ngcuka and that Zuma had been unfairly prejudiced by the NPA's statement last year that there was a prima facie case of corruption to answer, but the prospects of a successful prosecution were slim.

Mushwana also wants parliament to hold Ngcuka and the NPA accountable for what he says was their failure to co-operate with his office.

Ngcuka confirmed at the weekend that Zuma was no longer under investigation for corruption.

Mushwana told SABC television he was contemplating bringing charges of contempt against Maduna and Ngcuka for public attacking him and his office.

He said that he now understood Zuma's complaints about the level of arrogance in the NPA.

"I believe I have met that arrogance myself," he said.

"It is in newspapers, it is all over.

"I think anybody that would be following this story would have noticed by now."

Mushwana could not be reached for comment on Sunday night.

With acknowledgements to Angela Quintal and the Cape Times.