DA commends NPA decision on SARS-rogue unit charges

The Democratic Alliance (DA) notes the withdrawal of charges against Mr Ivan Pillay, Mr Andries Janse Van Rensburg and Mr Johann van Loggerenberg by the National Director of Public Prosecutions (NDPP).

Having appointed a panel of senior and expert prosecutors to evaluate the case docket and the available and admissible evidence, according to the correct principles and practices to be applied in all cases by a NPA doing its job diligently, they reached the conclusion that there was no prima facie case to be made against the accused, and therefore no prospect of a successful prosecution.

The NDPP,  having appraised herself personally of the relevant facts, as she must,  agreed with the evaluation and instructed the charges to be withdrawn.

This is how a Prosecuting Authority must go about its business. Scrupulously fairly,  scrupulously diligently. It is not a game.  Shamila Batohi has made not only the correct decision, but a courageous one.  It indicates a NPA getting back on the tracks of the rule of law.

But it cannot end there.

Each of the accused is a person in their own right.  Each held positions of some authority in institutions involved in upholding the law, and the rule of law. Each lost their employment and  have been impoverished by the very high costs of litigation, while their (and our) tax rands were used to litigate against them. Each has suffered irreparable reputational damage and public and private humiliation with the concomitant effects on everyday life and the lives of their families. This at the hands of (some in) an institution and a system that, when applied diligently, fairly and with absolute integrity, is meant to protect all South Africans from such abuse.

This cannot be undone.

If Ms Batohi is serious about the  rule of law and the integrity of the NPA,  then we must now also see the most serious consequences being visited upon those senior officials in the NPA  who instituted and drove this, and the many other, prosecutions that had no legal basis.

DA welcomes High Court dismissal of Jiba application for reinstatement

The Western Cape Division of the High Court today dismissed the application of Nomcgobo Jiba to compel President Cyril Ramaphosa and the National Director of Public Prosecutions (NDPP), Advocate Shamila Batohi, to reinstate her with immediate effect with full benefits.  The Democratic Alliance (DA) is delighted with this outcome.

In dismissing the application, the Court found that Ms Jiba had not made out a case.

This is good news for South Africa, the National Prosecuting Authority (NPA) and for Adv Batohi.

Ms Jiba has been instrumental in hollowing out the NPA and setting the course for where we find ourselves today – rampant corruption on a grand scale with no consequences.  The mess that has been left for Adv Batohi to clean up was largely caused by Jiba, Lawrence Mwrebi and Shaun Abrahams.

Had she been reinstated,  it would have been nothing short of disasterous for the resurrection of the NPA.  The toxic influence that Ms Jiba wielded cannot be overstated and any hope of righting the ship would have been destroyed by her return.

The criminal justice system is well rid of Ms Jiba and her total disregard for her constitutional duty and the Rule of Law.

DA welcomes Abrahams decision to prosecute Zuma

The DA welcomes the decision by the National Director of Public Prosecutions (NDPP), Shaun Abrahams, to proceed with the criminal trial of Jacob Zuma. This is a victory for all who have fought for years for Jacob Zuma to face accountability for his crimes. That accountability starts now.
We launched this review application in 2009, after the 783 charges were dropped illegally and unconstitutionally. It is a fight that we have been waging in the Courts for almost nine years and today’s decision is a vindication of the decision to challenge the dropping of the charges. Now there must be no further delay in starting the trial. The witnesses are ready, the evidence is strong, and Jacob Zuma must finally have his day in court.
We will brief our legal teams immediately to oppose any effort by Zuma to delay this any further, including his application for a stay of prosecution.
We will also fight to ensure the public do not have to carry the costs of Zuma’s defence, as they have already done for the past 9 years.
I thank all of the legal teams who have waged this ‘lawfare’ over the years. Their effort and dedication has defeated Zuma’s endless delay tactics.
When Shabir Shaik was found guilty on charges of corruption and fraud in relation to the Arms Deal on 7 April 2005, Judge Squires’ judgment made it clear that Zuma must also be charged, and that the evidence for this was “convincing and really overwhelming”.
Shaik and Zuma’s trials should never have been separated in the first place and the decision to reinstate the charges should not have been a difficult one. Zuma’s day in court is years overdue and the NPA’s prosecutions team have said that there was a strong case on the merits and the only reason charges were dropped was because of the infamous Spy Tapes.
The then NDPP made the decision to withdraw charges against Zuma because he felt that the Spy Tapes had prejudiced Zuma and had made the trial unfair toward him. The DA challenged this decision in court and this is what we have been fighting for the past nine years, which has now been vindicated.

DA disappointed by further delays in charging Jacob Zuma

 Please find the attached correspondence from Shaun Abrahams here.
The DA is disappointed but not at all surprised by yet more delaying tactics in the case against President Jacob Zuma on 783 counts of fraud, corruption, money-laundering and racketeering against him.
In the first place, one wonders whether Shaun Abrahams is in a position to grant Mr Zuma an extension until 31 January 2018 to submit representations as to why he should not be charged, given the decision last week by the High Court in Pretoria that Abrahams must vacate his position as National Director of Public Prosecutions.
Assuming he is in a position to do so, these charges are the very same ones put to Mr Zuma in 2007. This case is not complex and the only thing that has changed is the effluxion of time, which is very much a matter of Zuma’s own making.
The DA is also disappointed that Abrahams still refuses to treat Mr Zuma like any other accused. In the normal course of justice, the accused would be charged before a court of law and only then given the opportunity to make representations. However, Mr Zuma continues to receive special treatment and is yet to be charged like any other citizen.
Finally, as we have pointed out exhaustively in our submissions to numerous courts throughout the eight and a half years we have fought to bring Mr Zuma to justice, it is not for the prosecutors, however diligent, to decide if Mr Zuma has a case to answer. This decision must be made by a trial court, and the trial court must decide whether any evidence is inadmissible.
The long history of delaying tactics and obfuscation continue, but the DA remains committed to ensuring Mr Zuma has his day in court.

Zuma delaying again. Time for a real NDPP to Prosecute Zuma.

The Democratic Alliance (DA) welcomes the judgment by the North Gauteng High Court effectively setting aside the appointment of Shaun Abrahams as National Director of Public Prosecutions (NDPP), and ordering him to vacate office. Predictably, the President has indicated he will appeal this judgment, another attempt to delay the start of the criminal trial he should have faced years ago.
No matter the appeal, Shaun Abrahams should vacate office and let someone who can actually do the job take over. He has distinguished himself in his incompetence, by taking absolutely no proactive action on any of the allegations of corruption and state capture that have come to light in recent months. He has deferred to the President, and has consistently failed to assert his own independence and that of the NPA.
We also welcome the Court’s decision to remove the power of appointing a new NDPP from President Jacob Zuma, and to grant Deputy President Ramaphosa the power to appoint a new NDPP within 60 days. Deputy President Ramaphosa should oppose the President’s appeal, and do what the Court has instructed him to do. This is the perfect opportunity for Ramaphosa to demonstrate his real commitment to fighting the scourge of corruption in the state by appointing someone of obvious integrity and independence. We call on him to not wait 60 days to do so, but to do so without delay.
The NDPP is currently working on the existing criminal charges against President Zuma and should be planning the President’s upcoming trial. We need a new NDPP soon who will pursue the prosecution of the President with the vigour that the case deserves, and that has been so lacking in previous National Directors. Whatever happens in this appeal, there is no basis for any further delay to the Zuma trial. We expect that the NDPP should proceed to trial without delay.
This judgment is now the second time that President Zuma’s powers have been limited because he is so compromised. Zuma has proved he is not willing to appoint an independent NDPP who will act without fear or favour towards him as President. Every person he has appointed to the job has been manifestly unsuitable, given the job only to protect the President from prosecution. The NPA was the first state institution to be captured, and the Court has today struck a blow against that capture and in favour of a truly independent, muscular national prosecutor. Similarly, the previous Public Protector ordered the President Zuma should not be allowed to appoint a judge to lead an inquiry into state capture.
This is why the DA has previously proposed that the President’s power to appoint the NDPP be removed, and be vested with Parliament.
It is clear the President is incapable of exercising the powers of his Office. Cyril Ramaphosa should act without delay and appoint a National Director that will begin to restore the NPA’s reputation and its independence.

Shaun Abrahams must hand over Zuma’s new representations by 16h00 today

The DA’s lawyers have today written to the National Director of Public Prosecutions (NDPP), Adv Shaun Abrahams, compelling him to provide written confirmation that he did in fact receive fresh representations from President Jacob Zuma in relation to the 783 counts of corruption, fraud, money-laundering and racketeering before yesterday’s deadline. This must be done by no later than 16h00 today.
It goes without saying that if Adv Abrahams did receive fresh representations, these must be shared with all interested parties – including the DA – by 16h00 today in order for those interested parties to be given an opportunity to comment on such representations.
Alternatively, if no fresh representations have been made by the President, Adv Abrahams must advise on what steps have been taken to call President Zuma to his first court appearance. President Zuma remains charged, and those charges must be faced in a court of law as soon as possible.
Our view is that if the President has raised any new representations of substance, a court of law must make a determination as to whether those justify stopping the prosecution or not. This will guarantee a fair and open consideration of any new representations, and will shield the matter from any undue political interference.
We cannot allow Shaun Abrahams to consider these representations in secret, as he cannot be trusted to oversee this matter in an independent and robust manner. For almost an entire year Abrahams has been in hiding, and has failed to take any action on a number of issues, most notably the “Gupta Leaks” and the rot of State Capture perpetrated by Jacob Zuma and his ANC. As such, this matter must be dealt with by a court of law to guarantee independence.
President Jacob Zuma can only hide for so long. Make no mistake, he will have his day in court, and he will face the criminal charges levelled against him. The DA has been the principal litigant in this matter for almost a decade, and we have not wavered in our relentless pursuit of justice on behalf of South Africa and its people.
Jacob Zuma will have his day in court, he will face the charges for the crimes he is accused of, and justice will prevail.

Zuma must be charged by 16h00 today

Please find the DA’s full representations attached here.
The Democratic Alliance (DA) has today filed our submissions to the National Prosecuting Authority (NPA) arguing as to why Jacob Zuma should immediately face the 783 charges of corruption, fraud, money-laundering and racketeering in a court of law as soon as practically possible. Our submissions are in line with the NPA’s deadline for submission which is today, 30 November 2017.
Our submissions echo that which the DA has consistently stated from the get-go. That is, the charges against Jacob Zuma were irrationally dropped by the NPA in April 2009 and as such exist and are in effect. Prosecution must therefore continue without delay. However, in the unlikely event that President Zuma does in fact have materially new and relevant submissions to make, these ought to be considered by a court of law, not the National Director of Public Prosecutions (NDPP), Adv Shaun Abrahams.
The submissions reiterate the following pertinent facts:

  • The decision taken by then acting NDPP, Adv Mpshe, on 29 November 2007, to prosecute Jacob Zuma stands;
  • Adv Mpshe’s later decision, announced on 6 April 2009, to discontinue prosecution, has been set aside;
  • The only basis for Adv Mpshe’s 2009 decision to discontinue prosecution was that there was improper political influence in the timing of the service of indictment on Jacob Zuma. This argument has been rejected and defeated in the Supreme Court of Appeal (SCA);
  • The charges against Jacob Zuma stand, and he ought to face these charges in a court of law.

In terms of the President’s right to make representations, we note that Zuma has already been afforded the opportunity to make extensive representations which were fully considered and largely rejected. However, if there are any fresh representations submitted by the President today, the DA will not be in a position to deal with them until we have had sight of them.
Therefore we have requested the NPA shares these representations with all interested parties – including the DA – and that those interested parties are given an opportunity of 14 calendar days to comment on such representations.
Lastly, the independence and impartiality of National Director of Public Prosecutions (NDPP) has been questionable on numerous occasions in this matter. These are set out fully in our submissions.
Therefore, we are of the view that if the President raises any new representations of substance, a court of law must make a determination as to whether those justify stopping the prosecution, or not. This is to guarantee a fair and open consideration of any new representations by the President. The most appropriate process to follow is either for the President to lay out his representations in a comprehensive application for a permanent stay of prosecution in court, or for the President to formally raise any objections in his actual criminal proceedings before court.
Yesterday marked exactly 10 years to the day that the NPA took a decision to prosecute Jacob Zuma for 783 counts of fraud, corruption, money laundering and racketeering. Since then, Zuma has used every trick in the book, and every delay tactic at his disposal to frustrate and delay the matter. But Jacob Zuma knows full well that despite this, he will have his day in court, he will face the charges for the crimes he is accused of, and justice will prevail.
The DA will not relent in our fight to ensure that our justice system works and that those who are criminally charged have their day in court. This is no different for the President.

DA to approach courts this week on two highly significant issues

The Democratic Alliance (DA) will be in different courts this week on two very significant issues.
The President’s failure to appoint a Commission of Inquiry into State Capture
On 14 October 2016, the former Public Protector, Adv Thuli Madonsela, published a report on state capture. As she was unable to chronicle the full extent of how much of the state had been captured by the Gupta family, she accordingly ordered remedial action, inter alia, as follows:
The President to appoint, within 30 days, a Commission of Inquiry headed by a judge solely selected by the Chief Justice who shall provide one name to the President.
In making this order, the Public Protector was guided by the President’s own statement, quoted in the Nkandla case, that “I could not have carried out the evaluation myself lest I be accused of being judge and jury in my own case.” She, therefore, ordered him to appoint a Commission of Inquiry, but without allowing him to choose the judge that would, in effect, enquire into his own role in state capture.
We know from the SABC and Nkandla judgments that the remedial action of the Public Protector is binding unless set aside by a court of law.
The President has lodged a review application in the Gauteng North High Court to review and set aside the whole report on state capture, which will be heard towards the end of October.
He has not, however, interdicted the remedial action, and in our submissions, he remains bound to carry out the remedial action ordered, including appointing the Commission of Inquiry.
What is particularly bizarre about the President’s action is that he continuously stresses that he will appoint a Commission of Inquiry into state capture, yet he advances all types of reasons why he is not prepared to give effect to the remedial action.
The DA is asking the Court to find that, much like was the case in Nkandla, the President is in breach of his constitutional duties by ignoring the remedial action.
The case will be heard as follows:
Date: Tuesday 12 and Wednesday 13 September 2017
Time: 10:00
Venue: North Gauteng High Court, Cnr Paul Kruger & Vermeulen Streets, Pretoria, Tshwane
 
The case of the discontinuation of the prosecution against Jacob Zuma – the Spy Tapes case
On 6 April 2009, the then Acting National Director of Public Prosecutions (NDPP), Adv Moketedi Mpshe, announced that the National Prosecuting Authority (NPA) would be discontinuing the prosecution of Jacob Zuma on 783 charges of corruption, fraud, money-laundering and racketeering.
The next day, the DA launched a review application in the Gauteng North High Court to review and set aside this decision on the grounds that it was manifestly irrational and therefore illegal.
When an applicant brings a review application, he or she is entitled to “the record of decision”, that is, the documents, memoranda and minutes that were before a decision-maker when he or she made that decision. Thus the DA asked for the record of the decision to discontinue the prosecution. The record included the interceptions of telephone conversations between key decision-makers at the NPA, which are colloquially referred to as “the Spy Tapes”.
The initial hearing took place early in June 2010. The lawyers for President Zuma and the NDPP argued that the DA did not have the locus standi (direct and substantial interest) in the case, and that, in any event, a decision to discontinue the prosecution was not reviewable. The Court initially concurred with this submission.
The DA took the case on appeal to the Supreme Court of Appeal (SCA). The SCA handed down judgment in April 2012. It found that the DA did have locus standi and that the decision was reviewable. It, therefore, found in the DA’s favour and ordered the NPA to hand over the record of decision, including the Spy Tapes within 14 days.
For nearly 18 months, the NPA refused to hand the information over, and in September 2013, the DA was forced once more to approach the Gauteng North High Court for an order to compel the NPA to hand over the records. The DA obtained the order, but Zuma and the NPA took the matter on appeal to the SCA. The SCA upheld the order of the Gauteng North High Court in the latter part of 2014, and the DA obtained the record of decision, including the Spy Tapes.
Further delays occurred, but the substantive review of the rationality of the decision was heard by a Full Bench of the Gauteng North High Court in the second half of 2016. The Full Bench unanimously found that the decision to discontinue the prosecution was irrational and illegal and set it aside, thus effectively re-instituting the charges. President Zuma and the NPA sought leave to appeal, but the Court refused.
The President and the NPA then petitioned the SCA for leave to appeal. It is this leave to appeal (and, if granted, the appeal itself) that will be heard by the SCA on Thursday 14 and Friday 15 September 2017, in Bloemfontein, nearly eight and a half years after we first filed papers in this case.
The case will be heard as follows:
Date: Thursday 14 and Friday 15 September 2017
Time: 10:00
Venue: Supreme Court of Appeal, Cnr President Brand St & Elizabeth St, Bloemfontein
The Chairperson of the DA’s Federal Executive, James Selfe MP, will be at both courts.
 

DA requests meeting with NDPP Shaun Abrahams over indecision on Zuma Nkandla charges

Last week, I wrote to the Minister of Justice, Michael Masutha, requesting that he urgently see to it that a decision is taken on the already concluded investigation into the eight charges of corruption regarding the Nkandla scandal I laid against President Jacob Zuma in March 2014.
In a vague reply, the Minister of Justice stated that he would not intervene, but would continue to “monitor the situation”. This response is wholly inadequate and shows a Minister who is compromised and refuses to take responsibility, preferring to continue to defend and shield  Jacob Zuma.
I have therefore requested an urgent meeting with the National Director of Public Prosecutions, Adv. Shaun Abrahams, in order to press the matter with him personally. As the complainant in this case, I cannot accept that a decision still hasn’t been taken in over 3 years. If no commitment is made by Adv Abrahams in this meeting, we will be left with no choice but to approach the courts to compel the National Prosecuting Authority to take a decision to either charge or not charge President Jacob Zuma for his role in the Nkandla scandal.
The Minister of Police has stated in a reply to my Written Parliamentary Question that the investigation “has been concluded”, and that “the case docket was handed into the office of the NDPP on 21 August 2015, for a decision on prosecution”. And since August 2015, the NPA has seemingly avoided this matter in its entirety.
This matter is not a complicated one. An investigation has been concluded, and the docket has been sent to the NPA. The role of the NPA is simple – it must decide to either prosecute Jacob Zuma or not prosecute Jacob Zuma.
The NPA cannot carry out a mandate of selective prosecution. This is a direct violation of its duty to prosecute without fear, favour or prejudice. Mr Abrahams faces the simple task of doing his job by prosecuting any citizen who has a case to answer for, even if that person happens to be the Head of State.
 

Zuma Nkandla Charges: Justice Minister must ensure a decision is urgently taken

Last week, the Democratic Alliance’s legal team wrote to the National Director of Public Prosecutions (NDPP) calling on him to furnish the DA with a decision on whether to prosecute or not prosecute Jacob Zuma, by no later than Monday, 15 May 2017.
In a responding letter, the Acting Special Director of Public Prosecutions, Adv M Govender, refused to give a simple answer as to whether the President will be prosecuted or not, even though the completed investigation has been with the National Prosecuting Authority Authority (NPA) for almost two years now.
The Minister of Police has stated in a reply to my Written Parliamentary Question that the investigation “has been concluded”, and that “the case docket was handed into the office of the NDPP on 21 August 2015, for a decision on prosecution”.
Adv Govender now claims that further investigation is required before he can arrive at a decision. This is completely unacceptable and smacks of a justice system using every stalling tactic in the book to avoid prosecuting Jacob Zuma for his unlawful actions.
This matter is straightforward. An investigation has been concluded, and the docket has been sent to the NPA. The role of the NPA is simple – it must decide to either prosecute Jacob Zuma or not prosecute Jacob Zuma.
I will therefore be writing to the Minister of Justice, Michael Masutha, requesting that he urgently see to it that a decision on the already concluded investigation is taken, failing which the DA will be left with no option but to approach a court of law to compel the NPA to make a decision.
The selective prosecution on the part of the NPA is a violation of its duty to prosecute without fear, favour or prejudice. Mr Abrahams faces the simple task of doing his job by prosecuting any citizen who has a case to answer for, even if that person happens to be the Head of State.
We will continue to fight this cause and ensure that justice prevails so that the Rule of Law takes its rightful place.