The matter of whether President Jacob Zuma will face corruption charges is back in the hands of the National Prosecuting Authority (NPA).
The Supreme Court of Appeal dismissed Zuma and the NPA’s bid to appeal a 2016 High Court in Pretoria ruling that the 2009 decision to drop the charges was irrational.
Justice Eric Leach, reading out the judgment, said the order by the high court “cannot be faulted”.
In April 2009, then acting national director of public prosecutions Mokotedi Mpshe dropped the corruption charges based on what became known as the spy tapes, which allegedly showed political interference in the decision.
The NPA argued that determining the date for the serving of an indictment on Zuma was politically motivated.
The Supreme Court of Appeal found that the motivation behind the timing of serving the indictment would not affect prosecution.
Justice Leach said: “The reasons for discontinuing the prosecution provided by Mr Mpshe do not bear scrutiny for the recordings themselves on which Mr Mpshe relied, even if taken at face value, do not impinge on the propriety of the investigation of the case against Mr Zuma or the merits of the prosecution itself.”
There was also a contradiction because Mpshe had told the head of the prosecution team, Billy Downer, that the decision on when to serve the indictment was made by him alone.
However, in a supplementary affidavit Mpshe said he had been “untruthful”.
The court found that this explanation negatively affected Mpshe’s credibility and the soundness of his decision to discontinue the prosecution.
The court also found that Mpshe’s explanation that he wanted to preserve the integrity of the NPA and advance the cause of justice could hardly be said to have been achieved.
“The opposite is true. Discontinuing a prosecution in respect of which the merits are admittedly good and in respect of which there is heightened public interest because of the breadth and nature of the charges and the person at the centre of it holds the highest public office, can hardly redound to the NPA’s credit or advance the course of justice or promote the integrity of the NPA,” said Leach.
NPA spokesman Luvuyo Mfaku, speaking to the SABC following the judgment, said NPA boss Shaun Abrahams and his leadership team would consider the judgment and interrogate it before commenting.
He said the considerations would be guided by the rule of law and the proper administration of justice.
During arguments at the Supreme Court of Appeal last month, Zuma conceded that the decision to drop the charges was irrational but said he now wanted to have the opportunity to make fresh submissions to the NPA and for a rational decision to be taken.
The NPA was appealing the matter on the basis that the high court was encroaching on the independence of the institution and violating the separation of powers by ordering that the charges be reinstated.
“The court [Supreme Court of Appeal] has not done that. It has delivered judgment and it means it is back with the NPA. As to what will happen, the leadership team will take the South African public into their confidence on the way forward,” Mfaku said.