Court to rule on whether decision to drop charges against Zuma was lawful

The high court in Pretoria will deliver a judgment on Friday on whether or not the decision to drop corruption charges against President Jacob Zuma in 2009‚ was lawful.

The judgment comes just less than a month after the Constitutional Court found that Zuma had failed in his constitutional duty to protect the Public Protector.

Acting National Prosecuting Authority (NPA) head Mokotedi Mpshe relied on intercepted conversations between the boss of the now defunct Scorpions Leonard McCarthy‚ and former NPA boss Bulelani Ngcuka - commonly referred to as the Spy Tapes - to drop charges against Zuma in April 2009.

Zuma was facing 783 counts of fraud‚ corruption and racketeering.

Nearly seven years after Mpshe’s decision‚ the Democratic Alliance in March asked the full bench of the high court in Pretoria to review and set aside Mpshe’s decision.

If the court rules in the DA’s favour‚ a decision will have to be taken by new NPA boss Shaun Abrahams on whether charges should be reinstated against Zuma.

The conversations on the tapes‚ that were provided to Mpshe by Zuma’s legal team during March 2009‚ are mainly between Ngcuka and McCarthy.

The two discussed‚ among other things‚ whether then President Thabo Mbeki’s prospects to be re-elected as African National Congress president would be strengthened if the indictment against Zuma were to be served before‚ during or after the ANC’s elective conference in Polokwane in December 2007.

Zuma‚ who was elected ANC president‚ was eventually charged after the conference on December 28‚ 2007.

Announcing his reasons for discontinuing the prosecution‚ Mpshe said any timing of instituting the charges which was not aimed at serving a legitimate purpose was improper‚ irregular and an abuse of process.

However‚ the DA‚ in its arguments in court‚ said Mpshe’s decision was an impulsive one and was not a reasoned decision.

In its arguments in March‚ the National Prosecuting Authority 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‚” its advocate Hilton Epstein said.

Kemp Kemp SC‚ for Zuma‚ argued that 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‚ Kemp said.