Former president Jacob Zuma says the state chose not to charge him for corruption with his former financial adviser Schabir Shaik because then prosecutions head Bulelani Ngcuka feared he would be exonerated.
“Ngcuka did not want me to clear my name in a court of law then,” Zuma argues in an affidavit filed earlier this month. “For if I was exonerated in the Shaik case, it would mean that I was free permanently and could not be re-charged.”
Ngcuka went against the recommendations of his own prosecutors by deciding that while there may be a “prima facie” case against Zuma, it was not necessarily a winnable case. He therefore elected not to put Zuma on trial with Shaik 15 years ago.
That decision is one of Zuma’s biggest targets in his battle to permanently stay his racketeering, fraud, corruption and tax evasion prosecution, which has dominated headlines and spawned multiple legal challenges over the past 17 years.
Apart from arguing that the case should be stopped because of the National Prosecuting Authority’s (NPA's) “undue delays” in both charging him and putting him on trial, Zuma insists the case against him has been fatally tainted by political interference and prosecutorial irregularities.
Pivotal to his case is his argument that the state used its prosecution of Shaik as a “dry run” for its legal pursuit of him, thereby effectively robbing him of the opportunity to cross-examine the man later convicted and sentenced to 15 years behind bars for corrupting him.
“The prejudice of not charging me with Shaik meant that the NPA was continuing with the investigation without me being aware and was testing the evidence in the Shaik trial so that it could be used against me later. This also meant that I would be deprived of cross-examining Shaik as his co-accused.”
It is the state’s case that Shaik and his company Nkobi Holdings made 783 payments to Zuma, totalling more than R4m, in the 10-year period from October 25 1995 to July 1 2005. In return for these payments, the state claims, Zuma abused his formal position as MEC and as deputy president of the ANC to do unlawful favours for Shaik and his company.
During Shaik’s trial, the state proved four instances where Zuma had done such favours for Shaik.
The state further alleged that French arms company Thales “conspired with Shaik and Zuma to pay Zuma the amount of R500,000 per annum as a bribe” in exchange for Zuma’s protection from any arms deal investigations. While Shaik claimed this payment was in fact a donation to the Jacob Zuma Education Trust, the Durban High Court rejected that claim as “nothing short of ridiculous”.
But Zuma could also have played a key part in the delays with his Stalingrad approach to litigation.
In addition to unsuccessfully challenging the search-and-seizure operations that netted 93,000 documents used as evidence against him, Zuma brought multiple other legal challenges to the state’s case against him.
These included an attack on the Mutual Legal Assistance request sent to Mauritian authorities to secure evidence against Zuma, and a challenge to the state’s failure to seek representations from Zuma before recharging him. All of these cases ended in failure.
But Zuma insists he was exercising his constitutional rights by mounting these multiple legal attacks, and denies he was trying to delay his trial.
Following Shaik’s conviction in June 2005, the NPA announced charges against Zuma, and he was fired as deputy president by then president Thabo Mbeki.
Zuma argues that internal NPA memoranda — which he obtained under threat of legal action — now reveal that “the evidence used at the Shaik trial was surprisingly not sufficient to guarantee a conviction”. He has also slammed the case against him as “weak”.
The former president claims that this weakness is what then prompted the later disbanded Scorpions unit to conduct search-and-seizure operations on his homes, and the offices of his former lawyers. Zuma and Thales’ challenges to the validity of the warrants used to conduct these raids, which the state ultimately won, resulted in the case against Zuma being delayed by two years.
“The prejudice was that once again there was a cloud over my head and this time it was potent enough to cost me my job, albeit, while the investigations had not been completed.”
He denies any suggestion that he is far more responsible for delays in his trial than is the NPA, or that his permanent stay application is yet another attempt to delay his trial.
“That would be tantamount to arguing that I cannot use the law where it doesn’t suit the NPA or some interested parties like the DA even if the constitution and the law allows this. That cannot be correct in a constitutional democracy.”
The NPA will respond to Zuma’s accusations within the next two weeks.
During the early days of Zuma’s trial, the state was insistent in its denials of the then ANC presidential hopeful’s accusations that the case against him was driven by political motives. Now, in the wake of the so-called “spy tapes” recordings revealing that Ngcuka had continued to influence key decisions in the Zuma prosecution for political reasons long after he left the NPA, those denials are no longer possible.
Instead, the NPA will need to be ruthlessly honest with the high court about if and how Ngcuka’s decisions were influenced by politics and not the law.
Crucially, the NPA will need to show that the 15-year delay in putting Zuma on trial has not made it impossible for him to receive a fair trial, and that the forensic evidence — and the memories of witnesses against him — still stands.
It will be a case defined by headline-grabbing claims of political interference, but it will most likely be decided on the banal practical realities, and the fairness, of putting someone on trial 15 years after he was first accused of corruption. Whatever the reasons, it is the state’s part in that delay that the NPA most needs to explain.
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