Déjà vu in court as president uses favourite legal tactic - again
Shock concession in court heralds fresh bid to avoid facing the music over lengthy corruption saga
It took eight years of legal battles, seven major court hearings and millions of rands in legal fees, and this week it was all over in a combined three hours of argument.
President Jacob Zuma's lawyers conceded that the NPA decision that paved the way for his election as president eight years ago was fatally flawed.
In the Supreme Court of Appeal on Thursday, Zuma and the NPA sought to appeal a ruling of the High Court in Pretoria last year that the decision by the former director of public prosecutions, Mokotedi Mpshe, to withdraw criminal charges against Zuma in 2009 was invalid and void.
But after acting Judge President Mahomed Navsa tore the NPA's legal argument apart during the proceedings, Zuma's advocate Kemp J Kemp SC made an astounding concession: the decision based on the so-called spy tapes to withdraw the criminal charges had been wrong.
Follow-up questions from three of the five judges on the bench in the Bloemfontein court made clear just how important Kemp's concession was.
Navsa: "Can you defend technically the basis of which the decision was arrived?"
Kemp: "No, I can't defend that."
Navsa: "So, what we are ad idem [agreed] about is that in terms of the decision and the technically correct aspects, they erred?"
Kemp: "I will accept that, Justice Navsa."
Judge Azhar Cachalia: "Let's take it a step further: in other words they made an irrational decision?"Kemp: "Well, that is then correct."
Judge Eric Leach then referred to fresh representations that Zuma wants to make to the NPA about the corruption charges.
Leach: "So, your case is not that you want to have your cake and eat it; it's not that you support the decision [not to prosecute]. But if that decision is insupportable, then you want to have your representations dealt with? As I understand your position now, you accept that the decision was irrational and cannot stand but you still want your representations taken into account?"
Members of the public gallery gasped.
Zuma effectively told the court through his lawyers that he knew the decision that got him off the hook on criminal charges of corruption and allowed him to serve as president was wrong.
Zuma saw his ship was sinking and jumped on the last lifeboat available.
It was reminiscent of the day in March last year when Advocate Jeremy Gauntlett SC, appearing in the Constitutional Court on behalf of Zuma, conceded the president should pay back some of the money spent on upgrades at his Nkandla homestead, and that the recommendations of the public protector were binding. That was after he fought those very points for two years.
"[We made the proposal to pay] not to see if we can settle the case, but to bring an end to a protracted and difficult issue which has traumatised the nation.
"We do agree that the president must carry out the remedial action in the public protector's report ... We accept that in this case the recommendations were administrative and unreviewed, and therefore binding," Gauntlett told the court.
Zuma's concession in the Constitutional Court, like the one this week in Bloemfontein, represented a last-minute attempt to survive - even if it meant abandoning those who had loyally helped him.In the Nkandla matter, it was the then minister of police Nathi Nhleko and the ANC caucus in parliament who did all they could to save the president.
But when the going got tough, he threw them under the bus, leaving his two legal representatives dumbfounded.
At the SCA, Zuma pulled the rug from under the NPA, which had done so much to prevent his corruption charges going to trial.
Advocate Hilton Epstein SC, representing the NPA, could only tell the judges forlornly: "He [Kemp] did not add anything that may help me."
Zuma made the concessions before the SCA not because of a sudden attack of conscience but as part of a clearly devised legal strategy.
The concessions would effectively mean that the original decision to bring 783 corruption charges against him would be affirmed. Does that mean Zuma is finally ready to answer the charges in court?
Not quite, Kemp told the judges.
Zuma wants another chance to make submissions to the national director of public prosecutions, now Shaun Abrahams, on why he should not be charged for corruption and racketeering.
Two days before the concessions at the SCA, Zuma's legal team made a separate eleventh-hour U-turn in its strategy. In the High Court in Pretoria on Tuesday, the DA sought a declaratory order that would force the president to institute a commission of inquiry into state capture, as recommended by former public protector Thuli Madonsela as one of her last actions in the post.
Throughout the legal exchanges between the DA and the president, Zuma - who has taken Madonsela's State of Capture findings on review - took the position that he would not accede to her call for a commission of inquiry, led by a judge to be appointed by the chief justice, because Madonsela had tried to "outsource her powers to the judiciary".
But when Zuma realised this argument looked hollow in light of his statement to parliament that he was in fact in the process of setting up a judicial commission of inquiry, he changed his tune. He asked the Pretoria court instead for a stay in setting it up.