On 6 April 2009, Adv Mokotedi Mpshe, the then Acting National Director of Public Prosecutions, announced that he had decided to discontinue the prosecution against Jacob Zuma on 789 counts of fraud, corruption, money laundering and racketeering that arose from his relationship with his “financial adviser” Schabir Shaik. Mpshe took this decision based on some intercepted conversations, which later became known as “the spy tapes”, between Leonard McCarthy and Bulelani Ncguka held in December 2007 regarding whether the charges should formally be served on Zuma before or after the ANC’s Polokwane conference.
Mpshe believed that this had fatally compromised the integrity of the prosecution, but in fact the reason was much simpler: Zuma was about to become President of the country, and the spy tapes provided a useful “political solution” to avoid the dilemma of whether or not to prosecute a sitting president.
A day later, the DA, under the leadership of Helen Zille, lodged a court application to have this decision reviewed and set aside.
When one reviews an administrative decision, one is entitled to the “record of decision” (ROD) – that is all the documents, files and other material that were before Mpshe when he took the decision. The NPA refused to hand these over.
The first round was held in the Pretoria High Court in June 2010. The NPA argued that the DA did not have the standing to bring the application, that a decision to discontinue a prosecution was not reviewable and that therefore it did not have to produce the ROD. Mr Justice Ranchod agreed, and dismissed our application.
We appealed to the Supreme Court of Appeal. In April 2012, the Court reversed this judgement, finding that the DA did have locus standi and that it was entitled to the record, which included the spy tapes. In direct defiance of this order, the NPA did not hand over the record, relying on the fact that parts of it were privileged and others were secret.
After months of this stonewalling, we went back to the Pretoria High Court in mid-2013 to obtain an order to compel the NPA to hand over the Record. We obtained that order, but Zuma/the NPA appealed, so the case went back to the SCA. In a scathing judgment delivered in August 2014, Justice Navsa ordered the NPA to hand over a redacted version of the Record. We finally obtained the spy tapes.
The way was then open for the substantive review of the decision to discontinue the prosecution, but again, Zuma’s lawyers ducked and dived. The case should have been heard early in 2015, but it was only in 2016 that it was argued before a full bench of the Pretoria High Court. That court concluded that Mpshe’s decision was irrational and unlawful, and set it aside.
Unsurprisingly, Zuma and the NPA appealed to the SCA. The case was set down for two days, but by lunch-time on the first day, the NPA conceded that their appeal had no merit.
After weeks of further delay, Shaun Abrahams finally decided that he should stand trial, and Zuma appeared court yesterday.
Shockingly, both the cases up till now, and, presumably, the cases still to come, have been, and will be, funded by the taxpayer. You and I have already spent R15.3 million on keeping Zuma out of prison, and even if he is found guilty and has to pay back the money, he will not be able to.
But whatever happens, this has been a victory for the rule of law. It has established that, in just the same way as a decision to prosecute is adjudicated by a court (in the form of a guilty or innocent finding), so too must a decision to discontinue. It has been a resounding vindication of the independence of our courts, which have consistently seen through sham defences and glib justifications. More than anything, this case has been about a very simple principle: that no matter how powerful or well-connected or well-resourced a person is, we are all equal before the law.
Establishing this has been worth the nearly ten years of legal battles and the millions of Rands spent on them.