Tuesday, March 24, 2009

Zuma implicating Mbeki not basis to drop charges

The fact that ANC president Jacob Zuma is purportedly implicating former South African president Thabo Mbeki in respect of wrongdoing in the arms deal and influencing the Scorpions in respect of the Special Browse Mole report are not the basis upon which the NPA can rely to drop the charges against Zuma. All this means is that the NPA should now, if this is the case, be charging Mbeki with the crimes which this new evidence supports.

In the simplest terms if I murder someone and then advise the NPA that my boss murdered two others it should have no effect on the charge of murder against me. Where it may play a part is where I offer to give evidence against my boss in return for indemnity from prosecution — if I tell the truth — in terms of Section 204 of the Criminal Procedures Act 51 of 1977 as amended. Here I would be given indemnity subject to the magistrate or judge at the trial of my boss confirming that he is satisfied with my evidence. Zuma has confirmed that this will not be the route of his choice.

In the ordinary course however the guilt or innocence of others in the same or other criminal acts is not the basis for dropping charges against me. My cooperation — subject to it not being in terms of Section 204 — would be appropriate in convincing a court, upon my conviction, that there are factors which mitigate against a heavy sentence. It could also be used as evidence during a trial (though very risky) to show that I am a lawful citizen who seeks to assist the authorities in rooting out crime.

What it isn’t, is a basis at law upon which the NPA can rely to drop the charges.

In terms of defences it does not provide a ground for justification which excludes unlawfulness nor confirm an absence of any of the elements of the crimes with which Zuma has been charged. At best it seeks to suggest others are also guilty of crimes.


In terms of an actual basis for dropping the charges let’s turn to our favourite professor who sets out the following headings:

  • After taking representations from Zuma the NPA concludes the case is unwinnable.
  • That it is not in the public interest to proceed.
  • That Zuma could not get a fair trial as guarunteed in terms of Section 35 of the Constitution.
I urge you all to read the article as Professor de Vos sets out the pros and cons in respect of each. What it reinforces as far as I am concerned is the fact that the NPA would be adopting a kamikaze approach if they decline to furnish reasons for a decision to drop the charges if this turns out to be the case. Not only would they then be fielding questions on every conceivable reason for their actions — which they don’t exclude by giving the actual reason — but their credibility would be destroyed by a perception of being the political puppets of the government.

The perception is that we lost the Scorpions because they were too effective in dealing with corruption, Pikoli because he wouldn’t back down to the government or ruling party and now — if the NPA relent without giving their reasons — the NPA because of political pressure from the ruling party.

The next government had best employ the best spin doctor in the history of that ignoble calling to try and somehow convince South Africans that there is in fact a legal system which
all South Africans are accountable to, that will be enforced against all South Africans, carried on by law enforcement which is encouraged to tackle crime from the most powerful in the land downwards, where no cadres will be deployed, nor pressure brought to influence their decisions in favour of certain favoured people … Wait, must dash, a flock of pot bellied pigs is flying over our roof!

By Michael Trapido

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