NPA: failure to indict Zuma violated justice

The only victim of the state’s failure to charge former president Jacob Zuma with corruption 15 years ago was the "rule of law" as he would have been convicted if tried with his former financial adviser Schabir Shaik, his prosecutors say.

Confidential National Prosecuting Authority (NPA) documentation that was submitted to the courts with the state’s papers reveals the prosecutors were not convinced by arguments that Zuma did not intend to act corruptly when he signed a "revolving loan agreement" with Shaik, through which he received millions of rand.

As a former commander of the ANC’s intelligence service, which was at the centre of "cracking the defensive strategies of the apartheid regime", the former president was "no ordinary man", a February 2018 memo prepared for then prosecutions boss and Zuma appointee Shaun Abrahams states.

"His intellectual ability cannot be doubted, not to have realised that Mr Shaik was [greasing] him in order to get favours from Mr Zuma’s political standing."

The memo, signed by KwaZulu-Natal deputy director of public prosecutions Moipone Noko and lead Zuma prosecutor Billy Downer, was written in response to Zuma’s final bid to persuade Abrahams not to pursue the corruption case against him.

At the time, Abrahams was considering whether to withdraw the racketeering, fraud, corruption and tax evasion cases against Zuma. This was after the Supreme Court of Appeal ruled that then NPA boss Mokotedi Mpshe’s 2009 decision to do the same, based on alleged political interference in the timing of when Zuma was charged in 2007, was irrational and unlawful.

One of Zuma’s primary arguments to Abrahams, which also emerges strongly in his upcoming application for a permanent stay of prosecution, is that he should have been charged with Shaik in 2003 so he could have exercised his right to cross-examine Shaik and clear his name. Zuma’s prosecutors told Abrahams they did not buy that argument.

"The decision not to prosecute Mr Zuma was advantageous to him in that he remains innocent to date and was able to ascend to the highest office in the land by becoming the president of the Republic of South Africa. A conviction for corruption would have prevented such an ascension.

"The victim of such a decision was not Mr Zuma, but the administration of justice and the rule of law."

In the memo, the prosecutors are adamant that had Zuma been prosecuted, he "would have been convicted", given the judgment handed down against Shaik by the high court in Durban in 2005. Judge Hillary Squires ruled that there was a corrupt relationship between Zuma and Shaik, who was found to have kept Zuma on a "retainer" in order to further his business interests.

The judge further found that Shaik had facilitated a R500,000 annual bribe for Zuma from French arms company Thales, in exchange for Zuma’s protection from any arms deal investigation.

Zuma maintained that the money he received from Shaik was part of a revolving loan agreement with Shaik saying

the alleged Thales bribe was in fact a donation to the Jacob Zuma Education Trust.

The high court rejected Shaik’s explanation and found that the money had been channelled to the renovation of Zuma’s Nkandla homestead.

Zuma’s application for a permanent stay of prosecution is due to be heard in May.