Publication: Business Day Issued: Date: 2009-01-15 Reporter: Ernest Mabuza

Zuma Turns To Constitutional Court 

 

Publication 

Business Day
Date 2009-01-15
Reporter Ernest Mabuza

Web Link

www.businessday.co.za



African National Congress (ANC) president Jacob Zuma will approach the Constitutional Court in a bid to challenge the Supreme Court of Appeal ruling that the National Prosecuting Authority (NPA) did not have to give him an opportunity to make representations before he was charged again.

“We have taken the decision to bring an application for leave to appeal (to the Constitutional Court),” Zuma’s lawyer, Michael Hulley, said yesterday.

Papers would be filed in due course, and the grounds of the application would then be made known, he said.

According to the rules of the Constitutional Court, Zuma should lodge his application within 15 days of the appeal court judgment. His application should set out the constitutional issue raised in the decision.

The decision to approach the court is one of two options Zuma has in his bid to have the fraud and corruption charges against him dropped and to clear the way for him to head the ANC’s election effort later this year.

Hulley said on Monday that Zuma would also make representations to the authority on his case.

It is understood that Zuma’s legal team will try to convince the authority to reconsider the charges in the hope that the state will drop its case.

On Monday, the appeal court overturned a ruling by Judge Chris Nicholson last September in which Nicholson found that Zuma should have been given a chance to make representations before being charged.

Nicholson also inferred that there had been political interference in Zuma’s case, which led to the ANC deposing Mbeki as state president.

Mbeki has since welcomed the appeal court judgment.

In 2007, the national director of public prosecutions Mokotedi Mpshe charged Zuma with 18 main counts of racketeering, corruption, money laundering, tax evasion and fraud.

The appeal court found that Mpshe’s decision to charge Zuma was not a review of a decision in 2003 by former prosecutions head Bulelani Ngcuka to not charge Zuma.

Mpshe was therefore not obliged to consult Zuma first.

The court said Zuma’s reliance on section 179(5) of the constitution was “misplaced”.

Appeal Court Deputy President Louis Harms found that when Judge Herbert Msimang struck the case off the roll in 2007 the criminal proceedings against Zuma were terminated, and the proceedings were no longer pending.

“The effect of this is that what went before the Mpshe decision was spent, and a new decision to prosecute was required. The Mpshe decision was not simply a review of the Ngcuka decision, which was no longer extant.”

Ngcuka said in 2003 that he would not prosecute Zuma with his former financial adviser Schabir Shaik.

When Shaik was convicted of corruption in 2005, the now-suspended NPA head Vusi Pikoli charged Zuma. 

With acknowledgements to Ernest Mabuza and Business Day.
Unless Zuma thinks he is doing a public duty in bringing this matter before the Constitutional Court, it rings very hollow.

The NPA is in any case giving him the opportunity, not the right for there is none, to make representations.


Even if the Constitutional Court were to overturn the Supreme Court of Appeal on the right to make representations, so what, he would have in any case already made such representations.

He cannot think that because the NPA previously declined to declare it as a right for him to make representations, that the charges against him would be unlawful.

Even if the Constitutional Court were to overturn the Supreme Court of Appeal and the NPA had not yet allowed such representations, the NPA would then allow such representations and then decide whether or not to recharge.

The Constitutional Court cannot order the NPA to abandon charges against Zuma. It can only order it to take representations from him before recharging him.

The only hope that Zuma can have is that the Constitutional Court overturns the Supreme Court of Appeal which then cause the charges to be nullified and that causes the NPA to become fearful and thereby no recharge the accused.

But that is a vain hope for three reasons :