The verdict delivered by Judge Chris Nicholson in the Pietermaritzburg High Court on Friday raises key questions about the corruption cancer at the heart of government, President Mbeki's fitness to remain in office, Jacob Zuma's suitability to succeed him, the ease with which powerful politicians can influence the prosecuting authority and Zuma's attempts to avoid his day in court.

There are at least four key issues arising out of the judgment that deserve our immediate attention:

Firstly, it is clearer than ever that a judicial commission of inquiry is the only way we are going to get to the truth of the arms deal. This is a demand the DA has been making from the start. We must get to the truth because we cannot build our future as a constitutional democracy when government leaders block all means of establishing whether or not they are corrupt. Just as Jacob Zuma has avoided his day in court, so far President Mbeki has refused to establish a judicial commission of inquiry into the arms deal.

Secondly, the judgment suggests that President Thabo Mbeki influenced the National Prosecuting Authority (NPA) in his war against his designated successor, Jacob Zuma. President Mbeki must be given the opportunity to reply to this grave allegation. Unless he can convincingly rebut the judge's opinion, this would constitute grounds for his removal from office.

Thirdly, Jacob Zuma has not been acquitted of corruption charges. A court of law has yet to determine whether Zuma is guilty or innocent of charges of corruption relating to the arms deal. Zuma has repeatedly asked for his day in court to clear his name. Until this has happened, he cannot be a fit candidate for the Presidency of the country and he must withdraw until his name has been cleared in court.

Fourthly, it is clear that the NPA is susceptible to political interference. This needs to change if we are to prevent accusations of selective prosecution in the future.

The manner in which we deal with the issues arising out of the judgment will determine whether we strengthen constitutional democracy or weaken it. The DA believes that the following interventions will ensure that those who transgressed are held to account, that justice is served and that independent state institutions - in this case the NPA - are protected from undue political influence.

There are four key interventions required, each of which is elaborated on below:

• The establishment of a judicial commission of inquiry into the arms deal;
• The prosecution of Jacob Zuma, after he has been given the opportunity to make representations, given the prima facie case against him;
• The opportunity for Mbeki to explain his actions, failing which he must be removed from office through the dissolution of the National Assembly;
• A re-evaluation of the constitutional provisions and legislation governing the NPA, so as to restore the integrity of that institution.

1. Judicial Commission of Inquiry into the Arms Deal

The Court noted that "allegations concerning corruption relating to the arms deal... purport to involve very senior figures in government from the President downwards", and that, "Only a commission of inquiry can properly rid our land of this cancer that is devouring the body politic...".

It is therefore crucial that the President appoint a judicial commission of inquiry into the arms deal without delay. The commission should be headed by a judge nominated by the Chief Justice to avoid any allegations of bias or political interference.

Yesterday, my colleague, DA Parliamentary Leader, Sandra Botha , submitted a written motion to the Secretary of Parliament which would resolve the National Assembly to call on President Mbeki to appoint such a Commission. Today, I have written to the President directly asking him to urgently appoint a Commission.

If President Mbeki has nothing to hide, then there is no reason for him not to appoint a commission of inquiry. He certainly has nothing to lose politically.

2. Opportunity for President Mbeki to explain his alleged misconduct

Given the suggestion in the judgment that President Mbeki interfered in the NPA, the DA is of the view that, unless President Mbeki can satisfactorily explain his conduct before Parliament, he should resign. For his part, Jacob Zuma must withdraw his candidature for the Presidency until he is cleared of the charges against him.

Sandra Botha has today written to the Speaker of the National Assembly requesting that Parliament be reconvened so that the President may be called to explain his conduct before a joint sitting as a matter of extreme urgency.

Failing this, the National Assembly should be dissolved to trigger an early election. This would facilitate Mbeki's removal from office and would give the electorate an opportunity to decide who is fit to succeed him. Dissolving the National Assembly would require resuscitating the motion that the DA tabled earlier in the year to dissolve the National Assembly and getting it passed by a majority of MPs.

Some parties have already called for a motion of no confidence in President Mbeki, while some in the ANC are reportedly pushing for Mbeki to be removed from the Presidency in terms of section 89 of the Constitution [See notes to editors below].

Assuming that Mbeki is guilty of misconduct, neither proposal is optimal because both would clear the path for Zuma to be elected President without testing his support or the support of the party he leads at the polls. The 2,329 ANC delegates that elected Zuma as ANC President at Polokwane can in no way be said to be representative of the South African public as a whole.

In fact, the indications are that Zuma has far less support than is sometimes portrayed in the media. In the run-up to the Polokwane conference, a TNS survey found that 48% of respondents believed that "if Jacob Zuma becomes president in 2009, it will bring disaster for South Africa ". In April this year, Zuma's approval rating was 36% -- the lowest ever for an ANC leader.

Given the cloud of suspicion that continues to hang over Zuma, there is no reason to believe that public opinion has changed. The only sure way to test whether South Africans are prepared to be led by a man who stands accused of corruption, is to hold a fresh election.

3. Insulating the NPA from political interference

In its pronouncements on executive interference in the NPA, the Pietermaritzburg High Court pointed to flaws in the constitutional and legislative provisions governing the prosecuting authority that need to be remedied if we are to prevent its politicisation in the future.

In particular, the judgment criticised the way in which successive Ministers of Justice, namely Penuell Maduna and Brigitte Mabandla, allegedly undermined the independence of the office of the National Director of Public Prosecutions (NDPP) by cultivating an improper working relationship with the National Director.

Judge Nicholson argued that there "should be no relationship with the Minister of Justice - certainly insofar as his decisions to prosecute or not to prosecute anybody". He found that "the suspension of the National Director [Vusi Pikoli] was a most ominous move that struck at the core of a crucial state institution."

This has an immediate bearing on the Ginwala commission of inquiry into Pikoli's suspension, since he was suspended on the pretext that his working relationship with Minister Mabandla had broken down. I believe that the Court ruling invalidates the need for the Ginwala Commission, and that the Commission should be abandoned accordingly.

To limit the potential for political interference in the future, the DA believes that section 33 of the NPA Act which obliges the National Director to provide the Minister with reasons for any decision taken by the Director must be reviewed. In the coming period, the DA will examine the legislation with a view to amending it so that the Minister may not involve him- or herself with decisions to prosecute or not to prosecute.

It is evident too that, given Mbeki's alleged interference in the NPA, it is time to review the manner in which the National Director is appointed. It is currently the sole prerogative of the President to appoint the National Director, resulting in a conflict of interest when the National Director is required to make decisions that impact politically on power plays within the ruling party, and particularly on the President himself.

For instance, it has long been rumoured that Jacob Zuma - if he were to become President with corruption charges still pending against him - would simply appoint a National Director willing to drop the charges. This would amount to a gross abuse of power, but would be impossible to prevent given the power conferred on the President to hire and fire the National Director of Public Prosecutions.

I have instructed the DA's spokesperson on Constitutional Affairs, Len Joubert, to investigate the feasibility of establishing a body similar to the Judicial Service Commission to appoint the National Director of Public Prosecutions. Such a mechanism would be preferable to the model of direct presidential appointments.

The DA intends submitting private members' legislation to amend the relevant section of the NPA Act that deals with the relationship between the Minister of Justice and the National Director, and Section 179(1)(a) of the Constitution which empowers the President to appoint the National Director.

4. Proceeding with the Prosecution of Jacob Zuma

Finally, the DA believes that the NPA has a constitutional obligation to proceed with its case against Zuma. As Judge Nicholson noted in paragraph 148 of the judgment, "A prosecutor has a duty to prosecute if there is a prima facie case and if there is no compelling reason for a refusal to prosecute. In this context ‘prima facie case' would mean the following: The allegations, as supported by statements and real and documentary evidence available to the prosecution, are of such a nature that if proved in a court of law by the prosecution on the basis of admissible evidence, the court should convict."

Given the prima facie case against Zuma, there appears to be no compelling reason for the NPA not to prosecute, and as Judge Nicholson noted, the NPA has every right to do so. He said: "the State is at liberty to proceed again against the applicant [Zuma], subject to any further proceedings he may bring".

This time around, due care must be taken to ensure that Zuma's rights are not infringed and that he is give the opportunity afforded by the Constitution to make representations to the NPA. But the prosecution must go ahead. Any suggestions of political interference in the timing of Zuma's prosecution do not change the fact that, on the basis of Judge Hilary Squires's findings against Schabir Shaik, there is a strong prima facie case against Zuma. Judge Nicholson himself noted that: "Given that a decision was made to prosecute Mr Shaik and his corporate entities, the decision not to prosecute the applicant, when there was a prima facie case and bribery is a bilateral crime, was bizarre to say the least. It was a total negation of the constitutional imperatives imposed on the NDPP to prosecute without fear or favour, independently and in consistent, honest and fair fashion."

It would be a miscarriage of justice if Zuma were to get off the hook due to a legal technicality. Should the NPA decline to prosecute Zuma, the DA will investigate the option of privately prosecuting the ANC President as provided for in section 7 of the Criminal Procedure Act.

In conclusion, the DA believes that South Africa has the opportunity to close the chapter on a sordid episode in our political history. All that is broken can be fixed through the steps we have outlined here today. If we choose this path, we may yet emerge wiser, stronger and more prepared to consolidate our democracy.

Notes:

The Constitution sets out three ways in which the President can be removed from office, as set out below. The DA supports dissolving the National Assembly in terms of section 50, which would trigger a fresh election in terms of section 49.

50. Dissolution of National Assembly before expiry of its term

1. The President must dissolve the National Assembly if
1. the Assembly has adopted a resolution to dissolve with a supporting vote of a majority of its members; and
2. three years have passed since the Assembly was elected.

2. The Acting President must dissolve the National Assembly if
1. there is a vacancy in the office of President; and
2. the Assembly fails to elect a new President within 30 days after the vacancy occurred.

49. Duration of National Assembly

1. The National Assembly is elected for a term of five years.

2. If the National Assembly is dissolved in terms of section 50, or when its term expires, the President, by proclamation must call and set dates for an election, which must be held within 90 days of the date the Assembly was dissolved or its term expired. A proclamation calling and setting dates for an election may be issued before or after the expiry of the term of the National Assembly.

89. Removal of President

1. The National Assembly, by a resolution adopted with a supporting vote of at least two thirds of its members, may remove the President from office only on the grounds of
1. a serious violation of the Constitution or the law;
2. serious misconduct; or

c. inability to perform the functions of office.

2. Anyone who has been removed from the office of President in terms of subsection (1) (a) or (b) may not receive any benefits of that office, and may not serve in any public office.

102. Motions of no confidence

1. If the National Assembly, by a vote supported by a majority of its members, passes a motion of no confidence in the Cabinet excluding the President, the President must reconstitute the Cabinet.

2. If the National Assembly, by a vote supported by a majority of its members, passes a motion of no confidence in the President, the President and the other members of the Cabinet and any Deputy Ministers must resign.

Statement issued by Helen Zille, leader of the Democratic Alliance, September 16 2008