Implications of Zuma's case being struck off court role by the UDM President (02 October 2006)

When Judge Msimang struck the case against Jacob Zuma of the court role, the UDM stated that Zuma's supporters did not seem to recognise his continuing run of misfortune.

This statement was based on the history of the matter. At the outset - now already several years ago - the former Head of the National Prosecution Authority, Bulelani Ngcuka, made his infamous "prima facie" comments, which seemed to clear Zuma of future prosecution but simultaneously cast a cloud over him without providing him with an opportunity to prove his innocence.

It must be remembered that from the very beginning Zuma pleaded for his day in court, but instead the investigations dragged on. Indeed, these same vociferous supporters that stridently insisted that he be charged, got what they wished for when he was finally charged, but not before being fired as Deputy President of the country. And now that his day in court was about to dawn the case has been struck from the roll again. And now Zuma's supporters who have at times vilified the judicial process and questioned the integrity of the entire justice system embrace the latest decision with remarkable fervour and project it as a verdict of innocence, which it most certainly is not.

To me it looks like Zuma is back to square one, with the cloud still hanging over his head.

The judge has not done Zuma any favours. His political opponents will continue to say that he has many unanswered allegations against his name and that he continues to escape prosecution on technicalities.

The prosecution may have appeared humiliated, but in actual fact the court's decision favours the State, because they were not ready to proceed. Now, they have time on their side to prepare the case, and the timing of the indictment and hearing is firmly in their hands.

Legally-technically one can say Mr Zuma and his defence, by contesting the legality of the search and seizure of certain documents and evidence, are in the right. But the matter is still on appeal and it might yet be found that those warrants were lawfully executed. Either way, this is beside the point, because politically - and in the public view - this just raises more questions about what is in these documents that require hiding. They may never be aired in a court, but will almost inevitably be leaked in the media eventually.

If I was in his shoes I'd allow the State the use of these documents so that the case can proceed and his oft-declared innocence can be proven. If he were to do that he would seize the initiative, because the latest ruling has deprived him of the initiative; in this way he would be able pressurise the State to proceed as quickly as possible. Imagine, the State could wait until he goes to the ANC congress in 2007 where the ANC could elect him to their highest office, and only then charge him. That would make a mockery of Zuma and indeed deepen an already dangerous political situation. For him the best scenario is to enter the succession contest with his name cleared.

Currently there are various schools of thought regarding the longer term implications of his case being struck from the role. Some people interpret this as an acquittal; others say the NPA will come back to court to recharge Zuma. Yet others have argued that political intervention must be used to prevent Zuma from being charged again.

The prosecution has publicly stated that by 15 October they will have a final indictment ready and that they would be ready to prosecute from early next year. I can't see them backing off. Zuma after all has repeatedly pleaded for his day in court.

Those who have called for a political intervention to prevent further prosecution are misguided. How can the State, or the President specifically, be expected to have such a relationship with the head of the NPA? Indeed the same people who demand this, have made accusations about the President abusing state organs in order to pursue political goals, yet now they want exactly what they had previously condemned. Any political intervention would in any case forever tarnish Pikoli's independence, whilst simultaneously confirming to the conspiracy theorists that it is within Mbeki and the State's ability to consider political reasons when it comes to the pursuit of justice.

Perhaps most dangerously it would create the impression that Zuma's veiled threat to involve Mbeki in questions regarding Arms Deal corruption had forced the President to protect him for fear of being exposed. Whatever the truth, it would look like the cover-up of the century. It would look like Zuma and his legal team had succeeded in blackmailing the President of the country. The President, like the NPA and the courts, are constitutionally obliged to act without fear or favour; it is exactly Zuma's high profile which counts against him, because nobody can afford to be seen as acting in fear or favour.

I foresee therefore that the prosecution has no option but to finish the job they have started and will proceed to court so that once and for all we can get a "guilty" or "not guilty" verdict. There is a legitimate expectation on the part of the citizens of this country that the prosecution will proceed on the deadlines that it had publicly stated and prosecute Zuma from early next year, otherwise it could only be interpreted as the NPA playing political games.
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