29 April 2016

All of us who left the ANC with a heavy heart after Polokwane knew that Zuma was going to bring the presidency into serious dispute. As soon as he took office, he acted decisively to destroy the Scorpions and to corrupt the criminal justice system. He gave scant regard to his oath of office.

Mpshe did the same. Today’s decision, read by Judge Aubrey Ledwaba, laid bare the undermining of our Constitution by Mokotedi Mpshe who, like Zuma, broke his oath office too. Instead of acting without fear or favour, he acted secretly, improperly and irrationally. He provided conflicting evidence to the court. The Judge ruled that Mpshe's "sudden inexplicable turnaround was irrational". In the view of the court, at all material times, the decision of the NPA was to continue with the prosecution. There is no record of any change to that decision.

The court declared also that Mpshe made only a “half-hearted attempt” to investigate McCarthy’s abuse of process and kept Billy Downer in the dark about his decision to drop charges. The judge pointed out that the principle of audi alteram partem should have been applied and that both Bulelani Ngcuka and McCarthy should have been afforded the opportunity to defend themselves against the accusations that were brought against them. Mpshe did not do that.

Furthermore, Mpshe did not consult with his team before deciding to withdraw the charges against Zuma even though the decision was a “corporate decision”. In any case, the proper and logical course for Mpshe to have followed would have been the obvious one: leave it to the court to decide on whether the abuse of process by McCarthy was of such a nature as to warrant dropping the prosecution of Zuma. It was also inconceivable that Mpshe did not consult with the two senior independent counsels who were standing by before taking his decision not to proceed with the prosecution.

The judge was very surprised that in spite of an NPA decision to take action against McCarthy, Mpshe did not do so. Clearly it suited him to let the matter hang and to use the odour around it to justify the illogical decision he took.

The judge was also surprised that Zuma’s legal team did not reduce its oral representation to Mpshe into an affidavit. There were many grey areas allowed to remain murky.

COPE is delighted that all attempts by various role players to bury the nearly 800 charges against Zuma has not succeeded. Even more heartening is the fact that Zuma’s attempt to corrupt the criminal justice system to escape having his day in court has signally failed.

Now that it is clear that Mokotedi Mpshe acted very irrationally in numerous different ways, clearly listed in the judgment, Billy Downer should be given the go ahead to proceed with the “corporate decision” to charge Zuma.

COPE demands that the charges against Zuma be reinstated at once in order to repair the damaged reputation of the National Prosecution Authority. Advocate Abrahams must act on the strength and clarity of the judgment and take the matter forward as that will be in its best interest.

Issued by Mosiuoa Lekota, COPE President, 29 April 2016