A full bench of the High Court in Pretoria has reserved judgment in the Democratic Alliance’s application to set aside the National Director of Public Prosecution’s decision not to proceed with corruption charges against President Jacob Zuma.
Judge Aubrey Ledwaba said he was well aware that it was an important matter, but they needed time to consider their ruling.
Sean Rosenberg SC, for the DA, said in reply to legal argument by counsel for the President that the DA’s case had not changed and that they stood by their view that the April 2009 of the then acting National Director of Public Prosecutions (NDPP) Mokotedi Mpshe to drop the charges was irrational and unlawful.
“The decision was impulsive, perhaps because of political pressure,” he said.
The DA contended the decision was solely based on the conduct of the former head of the Directorate of Special Operations (DSO), Leonard McCarthy, who was taped while discussing the timing of whether to serve the indictment on Zuma before or after the ANC’s Polokwane conference with former NDPP Bulelani Ngcuka.
Zuma beat Thabo Mbeki when he was elected as leader of the ANC and was sworn in as President shortly after the corruption charges were dropped against him.
The President maintained McCarthy had manipulated the prosecutorial process in order to favour Mbeki in the presidential race.
Rosenberg argued that Mpshe’s decision at the eleventh hour after so many years of preparing for Zuma’s trial was not well reasoned and did not take the serious nature of the corruption charges into account, nor did it take into account the interest of the public to see that such serious charges were prosecuted.
He said although McCarthy’s conduct could not be condoned, his manipulation of the timing when the indictment was served had very little impact in the broader scheme of things.
He said instead of summarily discontinuing the prosecution, Mpshe should first have asked McCarthy and Nguka for comment and should have conducted an investigation or have left the decision if charges should be withdrawn to the courts.
Rosenberg said the recordings did not reveal quite such a “nasty and awful picture” as the prosecuting authority was trying to paint.
“It is not suggested that McCarthy comes across as blameless – far from it…. We say the tapes are limited in their impact,” he added.
He said there may have been practical and good reasons for the delay in serving the indictment, including that the NPA did not want to make an already volatile situation in the country worse, given the state of readiness to proceed with the trial at that stage.
Rosenberg maintained the public perception of Zuma’s prosecution being withdrawn at such a late stage had done grave damage to the institution of the NPA in the minds of the informed public.