Jacob Zuma will be prosecuted unless Shaun Abrahams, the national director of public prosecutions, decides again to drop the charges.
What are the implications of the judgment?
The judgment means that the original decision by the North Gauteng High Court to charge President Zuma stands and – in the absence of another legal move – the National Prosecuting Authority is legally obliged to implement it.
This means Zuma will be prosecuted unless Shaun Abrahams, the national director of public prosecutions, decides again to drop the charges (but on different legal grounds). The judgment also contains scathing criticism of the National Prosecuting Authority and its senior leadership.
It raises questions about the integrity of senior National Prosecuting Authority leaders and of the independence and impartiality of the prosecutions body. The judgment also notes that it was illegal for Zuma’s legal team to obtain and share the intercepted communications – the so called spy tapes – which raises questions about why no one (including Zuma’s lawyer, Roger Hulley) was ever charged for breach of the law.
What happens now?
Zuma’s lawyers will probably make another submission to Abrahams to argue that the charges must be dropped. This may include arguments that too much time has passed since the alleged crimes were committed or that new evidence has come to light that raises questions on whether the NPA has a winnable case against the President.
The Appeals Court left open whether Abrahams has the legal power to review a decision by the National Director of Public Prosecutions or not. If Abrahams does have this power, and if he again drops the charges, it will probably be the end of the matter.
If the charges are not dropped, the NPA will proceed with the prosecution, at which point Zuma’s lawyers will almost certainly approach the court to ask for a permanent stay of prosecution. It is not practically possible for Zuma to appeal to the Constitutional Court as his lawyers already conceded before the Supreme Court of Appeal that the decision to drop the charges was invalid.
What are Zuma’s options?
As the Supreme Court of Appeal points out in its judgment, Zuma and his lawyers have done everything in their power to prevent a situation where the president would have his day in court and would have to answer to the charges levelled against him.
This is why the president and his lawyers will continue to try to stop the prosecution by submitting new arguments to the National Prosecuting Authority on why the charges should be dropped. And, if that does not work, to try and convince the court that his prosecution must be stopped permanently because for some or other reason he could not receive a fair trial.
Can a sitting president be put on trial? Does South Africa have a precedent for it?
South Africa’s sitting president can be charged. There is no provision in the country’s constitution – or in ordinary legislation – that stands in the way of this happening.
The South African parliament could pass a law that changes this and protects a sitting president from criminal liability. But this wouldn’t get very far as such a law would be unconstitutional. It would be breach of the Rule of Law as developed by the South African Constitutional Court and it would also be in breach of section 9(1) of the Constitution which states that:
Everyone is equal before the law and has the right to equal protection and benefit of the law.
No sitting president has ever been charged with a criminal offence in South Africa. President Nelson Mandela was required to testify in a civil (as opposed to a criminal) case, after which the Constitutional Court imposed limits on when a sitting president would be required to testify in a civil case.
It would be unprecedented for a sitting president to face criminal charges and be prosecuted.
Pierre de Vos is a member of Claude Leon Foundation Chair in Constitutional Governance, University of Cape Town.