Court says Zuma charges can be reinstated. But presidency questions KPMG audit.

By Amogelang Mbatha and Mike Cohen

(Bloomberg) — South Africa’s Supreme Court of Appeal opened the way for the reinstatement of criminal charges against President Jacob Zuma by upholding a lower court’s ruling that a decision by prosecutors to scrap them was “irrational.”

Zuma’s lawyers conceded in a Sept. 14 hearing that the National Prosecuting Authority’s reasoning in dropping the case eight years ago was wrong but argued that the president should be allowed to make representations before a new decision is taken on whether to charge him. The court was silent on the issue and stopped short of ordering prosecutors to proceed with the case.

Jacob Zuma speaks at the launch of a new trans Africa locomotive at the Transnet SOC Ltd. engineering site in Pretoria. Photographer: Waldo Swiegers/Bloomberg

“The conclusion of the court below that the decision to terminate the prosecution was irrational cannot be faulted,” Judge Eric Leach said in his ruling delivered in the central city of Bloemfontein. “It is difficult to understand why the present regime at the NPA considered that the decision to terminate prosecution could be defended.”

The NPA spent eight years investigating allegations that Zuma, 75, took 4.07 million rand ($304,000) in bribes from arms dealers and charged him with corruption, racketeering, fraud and money laundering. It abandoned the case in 2009, months before he became president, saying taped phone calls indicated that chief investigator Leonard McCarthy used the case against Zuma to frustrate his efforts to win control of the ruling African National Congress from then-President Thabo Mbeki.

Political Machinations

The court said the allegations that the political machinations had tainted the case were irrelevant because they were unconnected to the integrity of the case against Zuma and the prosecution itself. It found that discontinuing the case didn’t advance the course of justice or promote the integrity of the NPA.

While the Democratic Alliance, the main opposition party, asked the court to order that the case should proceed immediately, NPA spokesman Luvuyo Mfaku said it wasn’t obliged to take action.

The court “never articulated itself on the way forward, so it goes back to the NPA,” Mfaku said by phone. “It is the NPA that has to consider the matter again. The national director of public prosecutions along with his team will study the judgment and after considering it comment extensively in terms of how it is going to be taken forward.”

DA leader Mmusi Maimane told reporters that his party’s interpretation is that the court had compelled the prosecutor to go ahead with the case.

The judgment comes just two months before the ruling party elects a new leader to replace Zuma, who has defeated several attempts to remove him from office amid a succession of scandals. A trial may also coincide with campaigning ahead of a national election in 2019 and follows a Constitutional Court ruling last year that the president violated his oath of office by refusing to repay taxpayer funds spent on his private home.

Leadership Battle

Reinstating the charges could damage the campaign of Nkosazana Dlamini-Zuma, the president’s preferred successor for the leadership of the ANC in December, and possibly lead to him leaving the national presidency before his term ends in 2019, according to Susan Booysen, a political science professor at the University of the Witwatersrand’s School of Governance.

“He has got his proxy or proxies in the race and of course it would reflect on them, because it would put more pressure on them to continue to take clear stands against corruption at a presidential level,” she said by phone on Thursday.

Dlamini-Zuma, the former chairwoman of the African Union Commission and Zuma’s ex-wife, and Deputy President Cyril Ramaphosa are currently seen as the front-runners for the ANC’s top position.

The ANC said in a statement that it had noted the court decision and would comment once it had studied the judgment.

Press statement from the Presidency

The decision of the Supreme Court of Appeal

The decision of the Supreme Court of Appeal today, whilst disappointing, was much anticipated. The Supreme Court of Appeal ruled that the then Acting National Director of Public Prosecutions (NDPP) had invoked the incorrect provisions in considering President Jacob Zuma’s representations to the National Prosecuting Authority (NPA). As such, the decision made to discontinue the prosecution against President Zuma is invalid.

The effect of the decision is that the only legitimate decision made by the NPA is to prosecute President Zuma. Importantly, it means that the representations have not been considered and the expectation is that the NDPP will now consider these representations under the correct prescripts of the law and make a legitimate decision relating thereto.

Any person has the right to make such representations and an expectation that a legitimate decision will be made.

These representations will be amplified in light of developments in the ensuing period, not least of all are the recent revelations around the integrity of the audit report [*Editor’s note: Read more, KPMG also compiled forensic probe into Zuma] which underpins the prosecution.