Did Harms show Zuma and NPA the way out?

At the outset I would draw to your attention that the contents of this article are based purely upon my own conjecture and insight and are not the product of any inside knowledge or sources who have confirmed what has been set out herein. As such I trust that you will address your comments and queries in accordance therewith.

As we all know one of the ways in which ANC President Jacob Zuma can extricate himself from the current criminal charges against him would be for the National Prosecuting Authority — based upon his representations or factors they consider compelling — to withdraw the same. One of the problems with this is that there is a prima facie case against Zuma which, as Judge Nicholson set out in terms of his judgement in the Pietermaritzburg High Court, requires the NPA to proceed.

In upholding Zuma’s application for the charges to be withdrawn, Nicholson put the prosecution on the back foot. As a result they appealed this decision to the Supreme Court of Appeals (SCA) where it was overturned as may be seen in the judgement of SCA Deputy President Judge LTC Harms. In respect hereof I want you to focus on paragraphs 40 to 44 under the heading “THE NGCUKA DECISION”.

Now return to the judgement of Nicholson and specifically his views on the failure by Ngcuka to proceed against Zuma despite allegedly having a prima facie case. In this regard read paragraphs 150 and 155 only. In response thereto and in order to enable you to compare the two judgements on this point herewith Harms’ response at paragraph 43 of his judgement:

“[43] Nicholson J also attacked the merits of the Ngcuka decision, finding that it was ‘bizarre’ and that it brought justice into disrepute (para 150 and 155). The merits of the decision were, once again, not before him and were irrelevant and in reaching this conclusion he in any event took no note of the NDPP’s explanation. It is correct that if there is prima facie evidence of a crime in the sense of reasonable prospects of success the NPA should, in the absence of other germane considerations, initiate a prosecution. But the term ‘prima facie evidence’ has more than one connotation and may mean, as Mr Ngcuka conveyed, that there may be evidence of the commission of a crime which is nonetheless insufficient to satisfy the threshold of a reasonable prospect of success, especially if regard is had to the burden of proof in a criminal case.[44] Although corruption involves two persons, the fact that the one may be guilty does not mean that the other is also guilty because the intention of each party must be decided separately, and evidence that may be admissible against the one may not be admissible against the other.[45] In other words, the fact that Mr Shaik was found guilty does not mean that Mr Zuma is guilty. Having said all of this, I must emphasise that I am not holding that the Ngcuka decision was right, simply because I do not have the material to judge what is in the context of this case a non-issue. Instead, I am simply holding that the court below had erred in this regard.” (Judge LTC Harms)

Harms on this point confirms that the NPA possessed of a prima facie case, in the ordinary course, should initiate a prosecution. However — and this is where the lights may well have switched on in the Zuma legal team’s bedrooms — “the term ‘prima facie evidence’ has more than one connotation and may mean, as Mr Ngcuka conveyed, that there may be evidence of the commission of a crime which is nonetheless insufficient to satisfy the threshold of a reasonable prospect of success, especially if regard is had to the burden of proof in a criminal case”.

If I were part of Zuma’s legal team reading that I would redirect my emphasis. Instead of trying to explain to the NPA why they do not have a case I would be focusing firmly on the fact that even if they do have a case they are going to have enormous difficulty proving it, specifically now that they can no longer rely on Schabir Shaik to assist them.

As Harms goes on to say: “In other words, the fact that Mr Shaik was found guilty does not mean that Mr Zuma is guilty. Having said all of this, I must emphasise that I am not holding that the Ngcuka decision was right, simply because I do not have the material to judge what is in the context of this case a non-issue. Instead, I am simply holding that the court below had erred in this regard.”

If you are a member of the NPA who may well have lost the support of Shaik for your trial and you then start reading a judgement by one of South Africa’s leading judges which gives you a clear get-out-of-Zuma-trial card what would you do? Moreover if sticking to your guns just makes you unpopular and the object of verbal abuse and attacks, would you hold firm in the face of a possible escape route?

If the charges are to be dropped, which is not yet confirmed at the time of writing this, then the seeds of a cunning plan to legally extract Zuma may well have started taking shape at the SCA.

I’ve been wrong many times before.