NPA, Zuma's legal team agree decision to withdraw criminal charges irrational

The NPA, together with Zuma, has appealed the High Court ruling that the decision in 2009 to withdraw the charges against him was irrational and they should be set aside.

FILE: President Jacob Zuma. Picture: GCIS

BLOEMFONTEIN - In a dramatic turn of events, both the National Prosecuting Authority and President Jacob Zuma’s legal teams have conceded that the decision to withdraw criminal charges was irrational and should be set aside.

What was supposed to be an appeal against the High Court decision to set aside the scrapping of the case has turned to arguments about what should happen after the decision is reviewed.

The High Court in Pretoria ruled last year that former acting prosecutions boss Mokotedi Mpshe’s decision was irrational.

In a surprise about turn, Zuma’s advocate Kemp J Kemp told the court he concedes that Mokotedi’s 2009 decision was irrational and stands to be set aside.

But he wants the court’s direction in what happens next.

Kemp argues that he wants to be able to make fresh representations to prosecutions boss Shaun Abrahams.

These would be the same representations made in 2009 that led to the irrational decision.

The NPA’s advocate Hilton Epstein wants the court to order the decision to prosecute be referred back to Abrahams to reconsider.

While each party has a different remedy in mind, they’re both pushing to have it referred to Abrahams for a decision.

Justice Azhar Cachalia has proposed that to facilitate the progression of a trial, this court may order that a new indictment be served on Zuma.

After that, he says, it’s up to Abrahams and Zuma to decide.

The judges have also questioned how the timing could have undermined the criminal case against Zuma.

Mpshe scrapped the case over concerns that political considerations were behind the timing of the indictment being served on Zuma.

WATCH: Proceedings at the Supreme Court

Justice Azhar Cachalia says once the indictment was served on Zuma, the prosecutorial process was over.

He says even if there were bad motives for the timing of that move, this issue would have been irrelevant because the decision to prosecute had been taken.

Justice Eric Leach weighed in, saying after a decision to charge is taken, there can be no abuse of the prosecutorial process.

Judges also questioned why Mpshe had not submitted a full affidavit to the High Court as opposed to a short affidavit merely to confirm a statement by willie Hofmeyr.

Cachalia says because Mpshe’s state of mind at the time of his decision is being investigated, he should have submitted the principal affidavit.

(Edited by Shimoney Regter)