President Jacob Zuma’s protracted legal battle to avoid prosecution on charges that include corruption, racketeering, money laundering and fraud, continues in the Supreme Court of Appeal in Bloemfontein on Thursday.

The charges stem from his alleged receipt of inducements to influence the award of contracts in the so-called Arms Deal in 1999, when the government bought military equipment to the value of R30-billion. At the centre of the current legal dispute is the timing of the decision by the then acting National Director of Public Prosecutions, Mokotedi Mpshe, to institute fresh charges against Zuma in 2007. At the time, Zuma was involved in a leadership struggle with then president Thabo Mbeki. In the end, Mpshe decided, presumably to avoid any appearance of political enlightenmen, to postpone the serving of an indictment until after the ANC’s Polokwane conference at the end of that year.

Following his indictment, Zuma and his legal team claimed the prosecution was influenced by political motives. To this end, they provided as evidence copies of intercepted telephone conversations (the so-called “spy tapes”) involving the Directorate for Special Operations (Scorpions) head at the time, Leonard McCarthy. Of specific importance was McCarthy’s conversations with Mpshe’s predecessor, Bulelani Ngcuka, who was widely seen as an Mbeki supporter.

This culminated in Mpshe announcing in 2009 that Zuma’s prosecution would be discontinued. The reasons he offered for his decision were based on “policy aspects”, arising from allegations that the intercepted telephone conversations indicated that McCarthy had manipulated the timing of the serving of the indictment at the behest of allies of Mbeki in the run-up to, and fall-out after the Polokwane conference.

The Democratic Alliance approached the courts to review Mpshe’s decision, asking for it to be set aside on the basis of irrationality. In April last year, the North Gauteng High Court ruled in the DA’s favour and refused Zuma and the NPA leave to appeal. Zuma. The NPA then approached the Supreme Court of Appeal (SCA), which granted them permission to present oral argument in their applications for leave to appeal.

In their heads of argument before the SCA, Zuma’s legal team submits that leave to appeal should be granted as it has a reasonable prospect of success, their appeal involves an important question of law, and that it is a matter of public importance, which will have an effect on future matters.

They go on to defend the rationality of Mpshe’s decision to discontinue prosecution claiming that McCarthy had, in fact, all along been the driving force behind the timing of Zuma’s persecution.

“This timing “was not a trivial inconsequential caper which did not pay off. It was designed to eliminate Zuma as presidential candidate at the first hurdle, or significantly detract from his prospects in such regard. It was designed to significantly change the political landscape for all South Africans for a lengthy period. The NPA’s power to decide to prosecute and charge was never meant to be wielded for such ulterior political purposes,” his lawyers say.

They further criticise the High Court’s finding that no “sensible” reason was established for why McCarthy would delay the announcement of the charging of Zuma.

“The answer is two-fold,” Zuma’s legal team goes on to explain. “First, Ngcuka and McCarthy clearly considered such delay would operate against Zuma – Ngcuka wanted that and McCarthy obliged’. Secondly, it is fairly obvious why they considered this the case:  “charging Zuma before the Polokwane elections would have started the fires of accusations of Mbeki’s manipulation of the prosecution to eliminate Zuma as the potential leader of the ANC. It may well have significantly upped support for Zuma. There is nothing inexplicable about the delay. It happened and it happened for a reason.”

They conclude that: “Mpshe formed the view, based on the evidence presented to him, that the process had been tainted and he considered the public interest considerations to outweigh the continued prosecution of Zuma.”

Quoting international case law, Zuma’s team points out that “only in highly exceptional cases will the court disturb the decisions of an independent prosecutor and investigator,” and that “it is the NDPP’s (National Directorate of Public Prosecutions) bounden duty to make the decision not to prosecute where appropriate and not to leave that to the court”.

They submit that the NPA was “within rational bounds” in declining prosecution.

“Where the abuse is designed to impact on who holds the highest office in the land and affect the political system of choice, and is executed by very powerful functionaries perceived to interact closely with the office of the president, a blunt cessation of prosecution will more likely restore faith in than bring into dispute, the prosecution authority.”

In return, the DA submits in its heads of argument that, as Mpshe announced his decision to discontinue prosecution, he also made it clear that he rejected most of the representations made on behalf of Zuma.

“Advocate Mpshe thus remained of the view that the charges against Mr Zuma were meritorious and serious; the prosecution team was untainted; the underlying decision to prosecute Mr Zuma was properly made, and nothing had been presented which would undermine the possibility of a fair trial for Mr Zuma.”

It criticises Mpshe for basing his decision to withdraw almost entirely on the content of the so-called “spy tapes” and points out that Zuma has “never explained the provenance of these recordings, nor how they came into his legal team’s possession”.

Referring to the content of the intercepted recordings of McCarthy’s telephone conversations and SMSs, the DA goes on to say:  “Even though the exact nature of these representations has not been disclosed, due to alleged confidentiality, it is evident that a feature of the oral representations was the explicit threat that if the NPA persisted in its prosecution, embarrassing allegations about the conduct of members of the NPA would be made public. The prosecution team correctly referred to these threats as blackmail.”

Quoting previous appeal judgments, the DA submits that even if McCarthy had been motivated by an improper motive, it did not mean that the prosecution was fatally tarnished. And that it was irrational for Mpshe to pre-empt the exercise of a discretion by a court of law.

They conclude: “In the circumstances, it is submitted that Advocate Mpshe’s decision was clouded by emotion, unsubstantiated facts, an inadequate investigation, confusion about his own role, and confusion about the effect of Mr McCarthy’s actions. Advocate Mpshe also failed to apply his mind to crucial parts of the test he had to consider in terms of the foreign jurisprudence he relied on. This is the very antithesis of a rational decision. Based on the material before him, he could not rationally have reached the decision he did that this case involved an abuse of the kind which was so serious and so egregious, that it justified the extraordinary step of withdrawing the prosecution of Mr Zuma.”

Two days have been set aside for the Supreme Court of Appeal to hear the applications and the responses.  Judgement is expected within a few weeks.