Ernest Mabuza
18 September 2008
Johannesburg — LESS than a week after Judge Chris Nicholson set aside the prosecutor's decision to charge African National Congress president Jacob Zuma, the National Prosecuting Authority (NPA) said yesterday it had decided to apply for leave to appeal against the judgment.
However, the NPA said the decision on whether to recharge Zuma would be made after the finalisation of the appeal.
NPA spokesman Tlali Tlali said one of the grounds of appeal was that the court's interpretation of the constitution and the NPA Act regarding the national director of public prosecutions' obligation to solicit representations from Zuma before recharging him was incorrect.
The NPA said the judgment had also made serious legal findings affecting the operational processes in the NPA.
Nicholson said the reading of section 179 (5)(d) of the constitution and the similarly worded section 22(2)(c) of the NPA Act meant the national director of public prosecutions ought to have taken representations from Zuma before deciding to prosecute him.
When passing judgment on the NPA's decision, Nicholson stressed that Zuma's application had nothing to with his guilt or innocence.
"It deals only with a procedural point relating to his right to make representations before the (NPA) makes a decision on whether to charge him again. Once these matters are cured the state is at liberty to proceed again against (Zuma), subject to any further proceedings he may bring."
Nicholson's judgment also criticised former national director of public prosecutions Bulelani Ngcuka for not charging Zuma together with his former financial adviser, Schabir Shaik, in 2003 and said the decision not to prosecute when there was a prima facie case was "bizarre".
"In other words, Mr Ngcuka was saying that he had what would normally be sufficient to prosecute (Zuma) and yet he declined to so. This decision was most strange for other important reasons connected to the nature of the offences.
"Bribery ... is a bilateral offence. It cannot be committed by a person alone."
He said that, as the prosecution policy pointed out, the circumstances of the offender could be taken into account, but if the implicated person occupied the second-most senior position in government as deputy president, that was hardly a reason to decline to prosecute.
"The more senior the status of a person in the government hierarchy the more seriously the courts regard his corruption," Nicholson said.
He said if there was a prima facie case of serious corruption against Zuma, there were no reasons of public policy why he should not have been prosecuted with Shaik.
Nicholson also said there was a breach of the independence of the office of the national director of public prosecutions and interference from political superiors.
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