To Prosecute or Not: Jacob Zuma and Circumventing the South African Court System

Whatever your views on Jacob Zuma, who is now certain to become South Africa’s next President, the recent decision by the NPA to bring an end to his prosecution on corruption charges is extraordinary from a legal perspective. Without obtaining a court ruling that continuation of proceedings would amount to an abuse of process, the decision by Mokotedi Mpshe, the acting head of the NPA, to discontinue proceedings without a court ruling to that effect is nothing short of astounding. He should undoubtedly had followed the prosecution team’s conclusion that the abuse of process question should be determined by a court of law.

The transcripts released by the NPA certainly support Mr Mpshe’s conclusion that an abuse of process was committed by Bulelani Ngcuka (the then head of the prosecuting agency) and Leonard McCarthy (the erstwhile chief of the Scorpions) in terms of timing the charges for political purposes. However, there is no suggestion anywhere in the NPA statement or in the previous proceedings relating to the Zuma indictment that the charges themselves amount to an abuse of process. Quite to the contrary, the successful prosecution of Schabir Shaik in 2005 for bribing Mr Zuma for greasing the wheels in relation to a number of deals at least establishes a prima facie case for Mr Zuma to answer. Indeed, Mr Mpshe specifically notes that none of the new evidence affects the substantive merits of the prosecution, the fair trial defences available to Mr Zuma or the practical implications of a continued prosecution. In other words, the NPA believes Mr Zuma still has a case to answer and can receive a completely fair trial.

Accepting that, the issue is whether, despite the possibility of a completely fair trial of charges justifiably brought, the abuse of process is such as to militate against prosecution. Mr Mpshe quotes an earlier decision in the same case:
‘A prosecution is not wrongful merely because it is brought for an improper purpose. It will only be wrongful if, in addition, reasonable and probable grounds for prosecuting are absent, something not alleged by Mr Zuma and which in any event can only be determined once criminal proceedings have been concluded. The motive behind the prosecution is irrelevant because … the best motive does not cure an otherwise illegal arrest and the worst motive does not render an otherwise legal arrest illegal. The same apply to prosecutions. … In the absence of evidence that the prosecution of Mr Zuma was not intended to obtain a conviction the … focus on motive [was misplaced].’

However, Mr Mpshe simply ignores this reasoning despite purporting to apply it. A continuation of proceedings against Mr Zuma does not necessarily bring the judicial system into disrepute and, if anyone is to make such a determination, it must be the South African court system itself. If anything, the decision by the NPA is more likely to bring the South African legal system into disrepute than the continuation of proceedings against Mr Zuma with a full and frank acknowledgment before the court that the former prosecutor had manipulated the timing of the charges for political purposes. The court could then decide for itself whether the charges should be set aside or whether a differently constituted prosecution team which made this abuse of process public and offered the defence all relevant documentation would be able to continue the prosecution.

The NPA decision has dealt a blow to the rule of law and confidence in the judicial and legal system in South Africa. The outrageous conduct of Mr Ngcuka and Mr McCarthy had already done enough damage without Mr Mpshe making another extra-curial decision taking the administration of justice out of the hands of the courts and sending the message that high-level prosecutions in South Africa are to be dealt with outside the court system.