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Tomorrow the full bench of the North Gauteng (Pretoria) High Court will hand down judgment in the Spy Tapes matter relating to the dropping of the 783 charges of corruption levelled against President Jacob Zuma. 

On 03 March 2016 the court reserved judgment in the DA's application to have the decision to discontinue the prosecution against President Zuma reviewed and set aside. We contend that the decision taken by the then acting National Director of Public Prosecutions (NDPP), Mokotedi Mpshe, was irrational, unreasonable and made with an ulterior political motive. This could have the effect of reinstating the charges against President Zuma.

Even if McCarthy and Ngcuka wanted to achieve a particular result at Polokwane, they clearly failed spectacularly and, ultimately, nothing turned on this attempt.

Indeed, it was common cause, that, although such attempts at timing service may have been lamentable, and McCarthy and Ngucka’s motives suspect, it did not affect the strength of the prosecution’s case against the President.

As such, discontinuing the prosecution was an irrational response to this potential irregularity, given the fact that it had no real effect on the prosecution’s case and clearly there was no prejudice to President Zuma’s right to a fair trial.

Accordingly, even if there was in fact an ulterior purpose, the NDPP’s decision not to prosecute President Zuma was based on an irrational overestimation of any potential threat to the President’s right to fair trail, and did not adequately take into account the public’s interest in seeing justice done, the Rule of Law upheld and corruption dealt with. To the extent that there was an ulterior purpose, this issue ought to have been raised in trial court.

We approached the court because we want to establish the principle, in the highest court if necessary, that no-one, whatever high office he or she occupies, however well-connected, however well resourced, is above the law, and that if a prosecution is to be discontinued, that must be on the merits of the legal case, and not out of political expediency.

Whoever loses this round is bound to appeal to the SCA and doubtless, in due course, to the Constitutional Court. It has taken seven years to get to this point in the litigation, and the finalisation of any appeals process will no doubt take a few years more thereafter. But ultimately the time and the cost is necessary to remind the President, the NPA and South Africa as a whole, that every decision to prosecute or not to prosecute must be made without fear or favour, and that even number one is not above the law.

Issued by DA