President Jacob Zuma is being offered the chance to escape prosecution on charges of state capture if he admits criminal wrongdoing and turns against the Guptas.
The prospect of a plea bargain is part of an exit package being secretly negotiated between ANC president Cyril Ramaphosa and Zuma.
The legal complexities and costs, as well as the fact that South African law does not accommodate political deals for criminal prosecutions, lies behind the delays in the talks and a deferment of Zuma's resignation.It is understood that Zuma wants the state to cover his legal costs in the event of prosecution but that Ramaphosa is reluctant to agree to this without co-operation from the president in nailing those who were involved in capturing the state.
The negotiations are further complicated because Zuma has not yet been charged on any matter in relation to state capture.
"It is actually quite sad that Cyril and JZ are negotiating this matter in anticipation of charges being brought against the president - without even knowing what the charges will be and in which matters," said a senior ANC leader who is privy to the talks.
Ramaphosa's spokesman Tyrone Seale referred questions to Luthuli House. ANC spokesman Pule Mabe did not respond.
Under sections 105 and 106 of the Criminal Procedure Act, a person can enter into a plea bargain with prosecutors if they concede criminality, but such an agreement would need the approval of a court. The deal could be overturned if the person is found not to have told the full truth.
Section 204 allows for indemnity if a person who is criminally charged turns state witness and testifies against those who are co-accused. Even then, indemnity from prosecution would only be given if the person's testimony was found to be truthful.
Another option Ramaphosa is presenting to Zuma is for him to testify at the parliamentary hearings on state capture. A person who provides full disclosure of criminal activity to parliament under oath could be indemnified from prosecution on the basis of the evidence they give.
The person could still be prosecuted on the basis of other evidence collected by the police or prosecuting authority, but not for anything they admit to under oath.
If Zuma opts to give evidence to parliament, he would have to get in before the Guptas do so - and implicate him.
The Guptas and Duduzane Zuma are expected to testify at the Eskom parliamentary inquiry sometime next month. No date for their appearance has been scheduled yet.
There is also a legal minefield in terms of the testimony Zuma gives to the judicial inquiry on state capture as he would have no legal protection for evidence he gives there.
In terms of the legal costs, Zuma could be covered for criminal acts he committed as president.
But Zuma already has a mountain of legal bills for the legal action he pursued in relation to his corruption case, which dates from before he took the highest office. In December, the High Court in Pretoria ordered that he be held personally liable for his "ill-advised" and "reckless" challenge to the public protector's report on state capture.The state of the nation address was postponed and an emergency NEC meeting was called off this week to allow Ramaphosa time to conclude the talks.
Parliament's presiding officers and opposition parties are trying to make sure the budget is presented as scheduled on February 21. That would require Zuma to resign and Ramaphosa to be elected president by the National Assembly by next week.
Yesterday Ramaphosa was scheduled to meet with the top ANC leadership to brief them on his negotiations with Zuma.
The Sunday Times understands that the top six will then brief the national working committee at 2pm tomorrow.
At his meeting with Ramaphosa on Tuesday, Zuma is said to have made a number of demands in exchange for stepping down, including that:
• He be allowed to deliver the state of the nation address;
• He stays for the next three months;
• The state pays his legal fees;
• His family is protected; and
• His free higher education policy is retained.
An NEC member said Ramaphosa was taking his time because he did not want Zuma to drum up public sympathy when he is axed.
"He is going to be fired at the NEC. He does not have much support in the NEC. But he has support in the ANC. What Cyril is trying to do is to avoid a situation where Zuma is getting public sympathy.
"What Zuma wants is to create an uproar and people to march in his defence. We will not allow him to do that," said an NEC member who was previously a staunch Zuma supporter.
The Sunday Times understands Zuma's backers have held meetings and strategised about how to block Zuma's removal.
One of the proposals they will make to the NEC is that Zuma hand over his executive powers to Ramaphosa without losing his job.
"We are calling for the Mandela/Mbeki power handover. Ramaphosa must take over the management of the state and Zuma must become a ceremonial president. In that way we'll avoid discontent because Zuma still has support within the ANC," said one NEC member sympathetic to Zuma.
However, other party leaders said Ramaphosa would never agree to that.
One national working committee member said: "We are all in agreement that he must go. It is a matter of what we are willing to give. The old man was resisting but then changed his tune ... Now he is confident again I hear. Maybe it's nice to be in power."
Another NWC member said they all agreed Zuma should go but some "Zuma ministers" were worried about their jobs.
Yesterday ANC chairman Gwede Mantashe called on people to give Ramaphosa time in his negotiations with Zuma.
"If the president of the ANC says 'wait for me, I am still talking to president Jacob Zuma', there is no need to criticise him," he told supporters in Mpumalanga. - Additional reporting by Mzilikazi wa Afrika, Sibongakonke Shoba, Thanduxolo Jika, Bongani Mthethwa, and Qaanitah Hunter..