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Court starts hearing Zuma argument

4th August 2008

By: Sapa

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The Pietermaritzburg High Court started hearing argument on Monday on why the corruption case against ruling party leader Jacob Zuma should be dropped.

His lawyer, Kemp J Kemp, presented arguments around the interpretation of section 179(5)(d) of the Constitution.

Zuma is claiming that the National Director of Public Prosecutions (NDPP) was obliged in terms of that section to give him the opportunity to make representations before it decided to prosecute him in 2005 and 2007.

A soft-spoken Kemp told the court that if the section did not apply to the NDPP, it would allow the state to change decisions constantly without representations being made.

Kemp, who was asked by Judge Chris Nicholson to speak louder, said that if the writers of the Constitution had meant that section 179(5)(d) did not apply to the NDPP, they would have expressly included it in the Constitution.

Asked by Nicholson if there was any ambiguity in the relevant section, Kemp said: "I don't see the ambiguity and I don't see the uncertainty."

Nicholson questioned whether it was ever contemplated that the NDPP itself would take decisions to prosecute when section 179(5)(d) was written.

Kemp is arguing that the state did not adhere to the conditions and twice decided to prosecute Zuma -- in June 2005 and December 2007 -- without offering him the opportunity to make representations.

Zuma is claiming that the decision to prosecute him was a reversal of a decision taken by the former NDPP, Bulelani Ngcuka. He announced in August 2003 that the National Prosecuting Authority would not prosecute Zuma, because it did not believe that it had a "winnable case".

But after Zuma's financial advisor, Schabir Shaik, was found guilty of corruption in 2005, the state decided to charge Zuma after all.

The state will argue that it did not need to offer Zuma the chance to make representations, because the conditions only apply when it is the NDPP reviewing a decision by someone more junior than himself.

The state believes that the conditions do not apply when it is the chief prosecutor reviewing his own decision.

However, the state contends in its heads of argument that when Judge Herbert Msimang struck the case against Zuma from the roll in September 2006, that meant there could be no review of Ngcuka's decision to not prosecute.

Zuma faces a charge of racketeering, four charges of corruption, a charge of money laundering and 12 charges of fraud.

The chanting of Zuma supporters could be heard within the court room, which was filled with the top leadership of the African National Congress, the South African Communist Party and the Congress of South African Trade Unions.
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