Editorial: Hot potato lobbed to appeals court

DURING his press briefing yesterday, National Prosecuting Authority boss Shaun Abrahams was at pains to assure South Africans of his independence.

He spent a considerable amount of time telling journalists that when deciding on matters before the NPA he was influenced by no one, took instructions from none and acted only in accordance with the law, without fear or favour.

It is an assurance he had to give to the nation, particularly before announcing what would be one of his most contentious decisions since taking office – that the NPA would appeal against the spy tapes ruling.

Last month, the North Gauteng High Court decided that the NPA’s 2009 decision to drop corruption charges against Jacob Zuma was irrational.

Abrahams, however, believes the court erred.

He believes then acting head of the NPA Mokotedi Mpshe was within his rights to decide to drop the case – based on the “egregious” conduct of prosecutors involved at the time.

Abrahams wants the Supreme Court of Appeals to confirm this and ultimately to place discretion to prosecute or not firmly and only in the hands of the prosecuting authority rather than the courts.

“As a matter of logic, there seems no reason why the head of the prosecuting service may not take it upon himself to determine that the abuse was so egregious as to warrant discontinuation, even in the absence of a direct and causal nexus between the abuse and the prospects of a fair trial,” Abrahams argued.

Whether the court will agree with him, we are yet to see.

In fact some of our country’s best legal minds already believe that if indeed the NPA is granted leave to appeal, it is likely to have a tough time convincing SCA judges to overrule the high court ruling.

If the NPA’s appeal indeed succeeds, Abrahams will hold Zuma’s fate in his hands.

If his bid fails, however, it would lend credence to claims that yesterday’s decision was a misguided delay tactic aimed at shielding Zuma from finally having his day in court.

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