Zuma’s legal team looks set to target Abrahams
The tables seem to have turned on former president Jacob Zuma’s ‘sheep’
Former president Jacob Zuma's legal team will focus their legal attack on the decision to prosecute him for corruption firmly on national director of public prosecutions Shaun Abrahams – and will argue that he did not “properly apply his mind” when he dismissed Zuma’s argument that the case should be dropped.
Ironically, Abrahams – who has been repeatedly forced to defend himself against allegations that he is Zuma’s puppet and a “sheep” – will face accusations that he did not give proper consideration to Zuma’s concerns about the state’s conduct towards him.
“We are giving consideration to the one-page and somewhat terse response received from the national director of public prosecutions (NDPP) wherein he has advised that the representations made on behalf of Mr Jacob Zuma are unsuccessful,” Zuma’s lawyer, Michael Hulley, said in a statement at the weekend.
“The rationale for this decision is not clearly apparent from the communication, nor is the basis for the refusal,” he added.Zuma had filed multiple lever-arch files containing numerous claims that the National Prosecuting Authority had abused his fair trial rights, as part of his bid to persuade Abrahams that the case against him could not proceed. His lawyers also denied that he had criminal intent when he received money from his former financial advisor, Schabir Shaik, who has been convicted of corrupting him.
But Abrahams was not convinced.
Zuma’s lawyers are now preparing to launch a review application within the next two weeks.
Crucial to any Zuma legal challenge to the Abrahams decision will be the Constitutional Court’s ruling on whether his appointment as NDPP is invalid. That ruling is expected any day now, and will decide whether Abrahams remains at the helm of the National Prosecuting Authority as the Zuma case proceeds.
If South Africa's highest court reinforces the North Gauteng High Court’s ruling that Abrahams’s appointment was invalid, Zuma’s lawyers will argue that this raises serious questions about his decision on Zuma.Zuma’s legal team is also expected to argue that Abrahams – under threat of losing his job because of court findings that he took Zuma’s side in the so-called spy tapes litigation – was not capable of making a neutral decision.
Ironically, it was Zuma’s self-admitted unlawful decision to give Abrahams’s predecessor Mxolisi Nxasana a R17-million “golden handshake” that paved the way for the North Gauteng High Court to rule that Abrahams’s appointment was invalid.
The court was, however, at pains to say that this ruling would not mean that any decisions made by Abrahams while he served as NDPP were now invalid.
Abrahams fought back against an urgent Constitutional Court bid by the Council for the Advancement of the South African Constitution to block him from making the Zuma prosecution decision on the grounds that he was perceived to be biased.
Abrahams argued that such perceptions would exist, regardless of who made the decision.
“If, for example, President Ramaphosa appoints a new NDPP, who decides to proceed with the charges, a significant sector of the public will doubtless suspect that the new president has designated my successor with a view to settling political scores or to pander to the public perception to which Casac refers.
“Conversely, should a NDPP appointed by the new president determine not to proceed, this will doubtless be perceived as an effort to avoid triggering dissent within the ranks of the ruling party.”
What is now clear is that Abrahams is very likely to face such allegations of politically motivated bias from Zuma's lawyers.
There are also already hints they will argue he “outsourced” his decision on Zuma’s prosecution to a team that included Zuma lead prosecutor Billy Downer, and was “overly hasty” in making his decision.Abrahams last week declined to give interviews after making his historic announcement on the Zuma prosecution, on the basis that his decision was likely to be the subject of future litigation. Abrahams also said Zuma’s various claims of prosecutorial misconduct were best decided on by a court of law, a clear reversal of the stance previously taken by acting head of the National Prosecuting Authority Mokotedi Mpshe.
Mpshe used the so-called spy tapes recordings as a basis for his April 2009 decision to drop the Zuma case, arguing that these recordings showed “egregious” interference in the timing at which the then ANC president was re-indicted.
The North Gauteng High Court – later backed up by the Supreme Court of Appeal – found this decision was irrational and unlawful, and Zuma “should” face the charges he was indicted on in 2007.
Letters contained in court documents show that Abrahams then formed a prosecuting team to advise him on whether the case could proceed, track down witnesses with the help of the Hawks and evaluate Zuma’s representations.
The sole decision he had to make was whether the state had a reasonable prospect of success if it pursued the Zuma prosecution.
He found that it did. And Zuma’s legal team are clearly not happy.
Hulley is understood to have been consulting with the former president about a potential legal challenge to Abrahams’s decision, which will see Zuma summonsed to appear in the Durban Magistrate’s Court in the coming days.
If Zuma challenges Abrahams’s decision that he must go on trial, he will have to apply for his prosecution to be stayed until such time as his review application is finalised.
And that may take up to two years.
Zuma’s legal strategy will also be heavily influenced by President Cyril Ramaphosa’s decision on whether to continue funding his defence, the cost of which is now estimated at R32.4-million.