Prosecution of Zuma 'not more important than prosecuting authority's integrity'
The pursuit of one individual should not trump the integrity of the prosecuting authority‚ the full bench of the high court in Pretoria heard on Wednesday.
The court heard this as the National Prosecuting Authority (NPA) continued its argument in response to the application by the Democratic Alliance to review and set aside a 2009 decision by the NPA to discontinue the prosecution of President Jacob Zuma.
The then Acting National Director of Public Prosecutions (NDPP) Mokotedi Mpshe decided to discontinue the prosecution of Zuma on 783 counts of fraud‚ corruption and racketeering. The charges were related to the arms deal.
Mpshe took this decision after recordings of conversations between the Scorpions head at the time‚ Leonard McCarthy‚ and former NDPP‚ Bulelani Ngcuka‚ were presented to the prosecuting authority. The conversations took place between November and December 2007.
The recordings‚ commonly referred to as the spy tapes‚ revealed that the two men discussed manipulating when the indictment against Zuma would be served in order to influence the African National Congress 2007 elective conference held in Polokwane.
In dropping the charges on April 6 2009‚ Mpshe said McCarthy used the legal process for a purpose outside the prosecution itself.
Mpshe said the NPA had a duty to ensure that its conduct was at all times beyond reproach.
Counsel for the NPA‚ Hilton Epstein SC‚ told the court that McCarthy had on three occasions during November and December 2007 tried to persuade three senior prosecutors to delay the prosecution of Zuma.
Epstein said the conversations between McCarthy and Ngcuka showed that McCarthy was using the NPA for his own political agenda.
“McCarthy was not some maverick outside the NPA. He was the NPA‚” he said.
Epstein said Mpshe had a discretion to discontinue the prosecution‚ and courts would not interfere with that discretion unless there were exceptional circumstances.
“We cannot allow the pursuit of one individual to trump the independence of the prosecuting authority. We know there is a lot of public sentiment about this case. One cannot allow that sentiment to trump the integrity of the prosecuting authority‚” Epstein said.
Kemp Kemp SC‚ for Zuma‚ said Mpshe’s decision in 2009 took into account the enormity of what McCarthy was trying to achieve.
Kemp said McCarthy's plan to delay the serving of the indictment was designed to ensure a certain political result at the ANC conference. It did not matter that the plan did not work.
Zuma was elected ANC president at the conference‚ defeating former president Thabo Mbeki.
Kemp said one of the lead prosecutors in the case‚ Billy Downer‚ confirmed in an affidavit that McCarthy interfered in when an indictment should be served.
The hearing continues.