DOCUMENTS

Jacob Zuma's affidavit for review application

Submitted to Pietermaritzburg High Court June 23 2008

___________________________________________________________________

AFFIDAVIT

___________________________________________________________________

I, the undersigned,

JACOB GEDLEYIHLEKISA ZUMA,

hereby make oath and state:

1.

I am the Applicant in this matter.

2.

(a) The matters deposed to hereinafter are within my personal knowledge save where the context indicates otherwise in which event I believe the averments made to be true and correct.

(b) Where I make submissions as to legal issues (and I have been advised to avoid legal argument as far as feasible), I have been advised accordingly.

(c) My legal representatives, especially Michael Hulley, my attorney of record in matters between myself and the National Director of Public Prosecutions ("the NDPP") since June 2005, are obviously well acquainted with many of the issues raised herein, as they dealt with the issues as they arose, and I verily believe that much of what I say as to the history of the matter and the historical events which form the basis of this application, are not in dispute. In these respects, I am very much putting on record events involving my attorney Mr Michael Hulley acting on my behalf. I refer to his confirmatory affidavit in this regard. In that sense I function as the mouthpiece for such evidence. I also refer to some parties who appear frequently, simply by surname purely for brevity's sake.

(d) Headings have been used in this affidavit to facilitate reading thereof and not to compartmentalise.

THE RESPONDENT:

3.

The Respondent is the National Director of Public Prosecutions ("NDPP") in his capacity as such, and thus the Head of the National Prosecuting Authority ("NPA"). The Respondent's address for purposes of these proceedings is VGM Building, 123 Westlake Avenue, Weavind Park, Silverton, Pretoria.

THE NATURE OF THIS APPLICATION:

4.

This is an application to declare the bringing of criminal charges against Zuma on 28 December 2007 when the latest indictment was served on him, to be unconstitutional and to set the same aside as invalid. The grounds on which it is so contended will be set out hereunder. The decisions to prosecute Zuma, which underlie these charges, are likewise to be set aside as unconstitutional and invalid. I annex hereto marked "A" the indictment served on Zuma on 28 December 2007.

THE GROUNDS OF CONSTITUTIONAL INVALIDITY:

5.

Section 2 of the Constitution of the RSA of 1996 ("the Constitution") provides as follows:-

"2 Supremacy of Constitution

This Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled."

6.

Section 179 (5) of the Constitution provides as follows:-

"179 Prosecuting authority

...

(5) The National Director of Public Prosecutions-

(a) must determine, with the concurrence of the Cabinet member responsible for the administration of justice, and after consulting the Directors of Public Prosecutions, prosecution policy, which must be observed in the prosecution process;

(b) must issue policy directives which must be observed in the prosecution process;

(c) may intervene in the prosecution process when policy directives are not complied with; and

(d) may review a decision to prosecute or not to prosecute, after consulting the relevant Director of Public Prosecutions and after taking representations within a period specified by the National Director of Public Prosecutions, from the following:

 (i) The accused person.

 (ii) The complainant.

(iii) Any other person or party whom the National Director considers to be relevant.".

 (my underlining).

7.

The provisions of Section 179(5)(d) of the Constitution are substantially repeated in Section 22(2) of National Prosecuting Authority Act 32 of 1998 (hereinafter the "NPAA"). Section 22(2) of the NPAA reads as follows:

"2) In accordance with section 179 of the Constitution, the National Director -

(a) must determine prosecution policy and issue policy directives as contemplated in section 21;

(b) may intervene in any prosecution process when policy directives are not complied with; and

(c) may review a decision to prosecute or not to prosecute, after consulting the relevant Director and after taking representations, within the period specified by the National Director, of the accused person, the complainant and any other person or party whom the National Director considers to be relevant."

8.

It is contended that the decision to prosecute me, as manifested by the December 2007 charges (and also an earlier decision to do so in June 2005) constitutes a review of and reversal of an earlier decision not to charge me taken during August 2003 and publicly announced at a press conference on 23 August 2003 "(the 2003 decision"). The National Director of Public Prosecutions thus exercised his powers under Section 179(5) on these occasions.

9.

It is contended that at no stage prior to such reversal of the 2003 decision and up to now, was I afforded an opportunity to make representations as to whether the 2003 decision should be reviewed. This is a clear and, I submit, conscious and deliberate negation of the constitutional prerequisites of calling for representations, considering these if provided and then making an informed decision whether to reverse the earlier decision and institute a prosecution or not.

10.

In the alternative it will be contended that the failure to invite representations from me prior to the 28 December institution of the prosecution was unlawful, unreasonable or procedurally unfair within the parameters of Section 33 of the Constitution, alternatively offends the principle of legality. Section 179 clearly has as its aim the creation of a structure which would serve to protect the implementation of fundamental constitutional rights in an effective manner. In this respect I make it clear that I am not at this stage impugning the decision itself based on inter alia the reasons and motives for the decision; that will be addressed in another application if needs be. If reference is made to such matters, it herein serves to inform as to the failure to invite and/or afford me an opportunity to make representations. What I complain about is such failure to evoke and hear representations.

11.

I shall hereafter set out in detail how the above came to pass and why I submit that the negation of the Constitutional provisions was deliberate and no oversight. In doing that it will be necessary to set out the history of attempts to prosecute me in respect of corruption charges and how these culminated in the present charges. I shall endeavour as far as feasible to do so succinctly and where feasible avoid factual disputes. Indeed, much of what follows is common cause between the Applicant and the Respondent. It is also necessary in this context to set out certain personal details regarding especially my role in the political field.

PERSONAL HISTORY OF THE APPLICANT - A BRIEF SUMMARY:

12.

At the outset, I wish to state that I do not provide these autobiographical details for any other reason, save that my legal representatives have advised me to do so in order to place some of the events relevant to this application, in proper context. They have formulated these details herein which I confirm as correct. In particular, I wish to avoid giving any impression that these details are being provided to evoke different treatment of myself by virtue of my involvement in the South African freedom struggle or my subsequent political career. I specifically make this point because in the past this exercise may have been misinterpreted and I wish to avoid that.

13.

I do, however, at the same time assert my right to be treated no worse than other members of our society. I am not by reason of political prejudices to be treated worse than any other litigant in the criminal context simply because I am a political figure. I respectfully, but specifically, make this point because I verily believe that I have in the past on occasion been subjected to such "special" treatment to my detriment.

CHRONOLOGY OF PERSONAL HISTORY:

14.

I was born on 12 April 1942 and grew up in the now KwaZulu-Natal.

15.

During the struggle for liberation in the RSA, I played a prominent political role which led to my imprisonment on the notorious Robben Island and upon my release from jail I lived in exile. I had a leadership role in the armed struggle to liberate South Africa. I continue to occupy positions of leadership, as in the past, as demonstrated by the various portfolios to which I have been either elected or assigned during the course of my political involvement as set out hereunder:

(a) Head of Intelligence of the ANC;

(b) Provincial Minister, KwaZulu-Natal;

(c) Government Leader of peace negotiations in KwaZulu-Natal;

(d) Chairperson of ANC;

(e) Deputy President of RSA (1999);

(f) Government Leader of peace negotiations in various African States;

(g) Deputy President of ANC;

(h) President of ANC (December 2007).

16.

During my trial on a charge of rape of which I make mention hereafter, I testified as to some aspects of my role in the armed struggle and in South African politics thereafter. I annex the relevant pages marked "B". I confirm these aspects.

THE HISTORY OF THE CURRENT PROSECUTION:

17.

It is convenient and functional to divide the history of the events leading up to the present prosecution into 4 consecutive periods:

A. The period up to the August 2003 decision not to prosecute.

B. The period up to the June 2005 decision to prosecute.

C. The period up to the charges being struck from the Trial Court's Roll in September 2006.

D. The period up to the December 2007 charges and the immediate aftermath.

18.

In dealing with these events I shall endeavour to steer away in so far feasible from contentious issues such as the political motives and stratagems which I verily believe were and are the driving forces behind many of the actions of the prosecuting authorities and those who influence these. This avoidance must not be construed in any manner as an acceptance by myself that the process was regular and not tainted by political motives, stratagems, considerations and undertones. Should the present application not result in a positive outcome in respect of a re-appraisal of the decision to prosecute, a permanent stay application will be brought in which these issues and the impact on my fair trial rights will be addressed in detail. Nothing I say herein, should thus be seen as a concession on that front. It was, however, considered proper by my legal advisors not to await the trial date to spring this application. I have been advised that as a matter of logic and expediency, the current issue should be mooted first and prior to the trial date as unilaterally fixed by the Prosecution at the outset hereof (This issue has since been redressed between the legal representatives).

19.

THE PERIOD UP TO THE AUGUST 2003 DECISION NOT TO PROSECUTE:

In describing these events, much is borrowed from the NDPP's indictment of myself and various expositions by the NDPP of the historical events appearing in the litigation that has already occurred involving myself and the Respondent. This does not mean that I accept the correctness of all these expositions adopted herein beyond the parameters of its adoption and even within such parameters, beyond the scope of this application.

20.

In the design for the South African Defence Force, which was recommended in the Defence Review of the 1990's, military equipment types were identified as being required by the Defence Force.

21.

In order to procure the said military equipment, requests for information were submitted on 23 September 1997 to various other countries, and after receipt of such information by the closing date of 31 October 1997, requests for offers were issued to short listed potential suppliers.

22.

The process to procure the various types of equipment was generally known as the Strategic Defence Package Acquisition Programme, or the Arms Deal as the concluded Agreement came to be commonly referred to.

23.

After the closing date for the receipt of offers on 13 May 1998, the next step in the official process was to select a preferred bidder. The Strategic Offers Committee met on 1 and 2 July 1998 for this purpose and specifically to consolidate the scores of the various technical teams that were evaluating various aspects of each bid.

24.

The South African cabinet confirmed the preferred bidders in a meeting of 18 November 1998.

25.

A negotiating phase between the South African government and the Preferred Bidders followed after 18 November 1998. The final contract, relating to the part which would later become relevant to this specific matter ("the corvette program"), was signed on 3 December 1999 between the government and a newly formed consortium named the European South Africa Patrol Corvette Consortium ("ESAPCC").

26.

Questions relating to alleged irregularities in the Arms Deal were raised from September 1999. These were raised in the press and Parliament. Allegations of corruption in respect of the award of the contract for the corvette programme were raised in the media from February 2000.

27.

As a result hereof and other developments in this regard, the Respondent alleges that on 6 November 2000 the Director of the then Investigating Directorate : Serious Economic Offences instituted a preparatory investigation in terms of section 28(13) of the NPAA. Section 28(13) empowers the Investigating Director to hear evidence in order to enable him to determine if there are reasonable grounds to conduct an investigation in terms of section 28(1)(a) of the Act.

28.

On 24 August 2001 the Investigating Director allegedly instituted an investigation contemplated in terms of section 28(1)(a) of the Act. The terms of the investigation included the suspected commission of offences of fraud and/or corruption in contravention of the Corruption Act, 94 of 1992, or the attempted commission of these offences, arising out of the Arms Deal, involving the prime bidders/contractors in terms of which certain contracts and/or sub-contracts for the supply of armaments were concluded and more specifically in respect of certain contracts and sub-contracts. The terms of the investigation are annexed hereto marked "C".

29.

On 22 October 2002 the investigation was allegedly extended to include:

a. "The suspected commission of fraud and/or corruption in contravention of the Corruption Act, No. 94 of 1992, or the attempted commission of these offences, arising out of:

i. payments to or on behalf of or for the benefit of Jacob Zuma by Schabir Shaik and/or the Nkobi group of companies and/or the Thomson/Thales group of companies; and

ii. the protection of, and/or wielding of influence for, and/or using public office to unduly benefit the private business interests of Schabir Shaik and/or the Nkobi group of companies and/or the Thomson/Thales group of companies by Jacob Zuma.

(These would form the essence of the charges levied at me from then to now)

 b. The suspected commission of offences of

i. theft of company funds by Schabir Shaik from the Nkobi group of companies;

ii. tax evasion by Schabir Shaik and/or the Nkobi group of companies in contravention of the Income Tax Act, No. 58 of 1962;

iii. making false entries in the books and records of the Nkobi group of companies and/or failing to keep proper books and records in respect of the Nkobi group of companies in contravention of the Companies Act, No. 61 of 1973;

iv. fraud against the shareholders of the Nkobi group of companies.

30.

It is clear that Schabir Shaik and myself, as well as the Thint companies, had been intensively investigated since at the very least the middle of 2001 if not earlier (the NPA has always been somewhat coy as to exactly who was investigated, when). This is so despite the above extension only being effected a year later in an effort to lend legitimacy to the earlier investigation - this again will be addressed elsewhere. According to the NPA it had thus been aware of allegations that Schabir Shaik and I and the Thint Companies were involved in corruption in connection with the Arms Deal from at least the middle of 2001 (I label as the Thint Companies the present accused 2 and 3 in the most recent charges brought in December 2007).

31.

A very intrusive and wide ranging investigation into the possibility of me being involved in corrupt activities with especially Schabir Shaik and the Thint companies were thus conducted since mid 2001 at least. State resources were utilised on a grand scale with search and seizure operations being carried out in October 2001 in the RSA and other countries where these were successfully requested (inter alia, France and Mauritius). Reluctant witnesses were compelled to testify; hundreds (if not thousands) of persons were questioned and bank records and documents were obtained through the (draconian) statutory powers of the NPA and otherwise. In short, a most thorough investigation was conducted with myself the main target.

32.

It is in short perfectly clear that I have been investigated since 2001 by the NDPP and that I and all aspects of my life, particularly my financial affairs, came under intense scrutiny from the Prosecution in 2001 up until mid-2003. The Prosecution used a multitude of Government resources to diligently and intensively do so for 2 years on its own version.

33.

The fact that I had been targeted in a NPA investigation in respect of corruption connected with the Arms deal has been public knowledge since, at the latest, November 2002.

34.

The personal strain on my family and myself was immense. It was very difficult for me to carry out my duties as Deputy President, and my status and reputation were undermined. It thus demanded a great deal of extra effort and resilience from me.

35.

I was also specifically requested by the NDPP to respond to a wide range of questions regarding the subject matter of the investigation and other matters. I was assured by the then NDPP in 2003 that it was necessary to respond to these questions for the decision as to whether I should be prosecuted, to be finalised. I did then respond to the questions in writing. This response was formulated by my then legal team and provided substantive responses to those questions which appeared to be linked to the investigation and not purely a fishing expedition.

36.

The outcome of the investigation was announced to the world on 23 August 2003 by the then NDPP, Mr Ngcuka at a press conference in and Constitutional Development with the venue bursting at its seams. Mr Ngcuka was flanked by the then Minister of Justice, Mr P Maduna. The press conference was broadcast on National Television.

37.

I annex the full text of Mr Ngcuka's statement hereto and mark it "D".

38.

I have been advised to indicate the main features of the above statement "D" of the National Prosecuting Authority given under the hand of Ngcuka on 23 August 2003 which will be relied upon herein.

(a) The statement relates to the decision of the NPA to prosecute me (especially par 1 and par 32 and 34).

(b) It acknowledges how important and significant the decision whether to prosecute me or not was, and the tremendous interest and publicity it evoked - it was a particularly important decision of great public interest (see par 10 in particular).

(c) It acknowledges that there had been an in-depth and lengthy and thorough investigation into any corrupt activities on my part, particularly any activity in respect of Shabir Shaik or the Arms Deal or any of the companies which were interested in contracts forming part of the Arms Deal. This investigation had lasted for 2 years.

(d) The statement recognises the very prejudicial effect the investigation had on many facets of my life (especially par 13, 17 & 33). It recognises that this investigation had placed a very significant strain on me and affected me detrimentally and significantly in my personal life and in my political role as Deputy President of the country and the ANC. The constant media speculation with a faction of the press clearly baying for my blood only served to exacerbate this impact.

(e) The decision covered the activities and relationships between Zuma and Schabir Shaik and Thint and aspects of the Arms Deal which now form the essence of the June 2005 and December 2007 indictments (especially par 11, 26 and the authorisations referred to).

(f) The investigation was thus an extensive and intensive one which lasted more than two years, carried out by very experienced investigators. The decision taken was a very carefully considered one (especially par 1, par 11, par 27 and 32)

(The Statement and the paragraphs referred to obviously have to be read in context).

(g) It clearly and unequivocally announced a well considered decision not to prosecute me; a decision arrived at after carefully considering all the evidence and even consulting eminent senior Counsel (Shaik on the other hand was to be prosecuted).

(h) This was the considered decision of Mr McCarthy, the DSO then and also indeed of Mr Ngcuka, the then NDPP. Not only does Ngcuka in the announcement refer to "we" in respect of the taking of the decision, but indeed this has been confirmed on oath by himself and McCarthy in the later proceedings before the criminal trial Court (Msimang J) in the latter part of 2006 (which proceedings are explained hereinafter).

(i) The duty of the NPA to recognise and respect Constitutional obligations and values and the rule of law was emphasised (par 4, 7 & 9).

(j) A less palatable aspect of the announcement was the mode thereof. All that was required in conclusion was a statement that the evidence does not warrant a prosecution hence the decision not to prosecute me, however Ngcuka's statement deliberately conveyed the sentiment of "Zuma is corrupt but he has covered his tracks well". This was a gratuitous and offensive imputation that I had to endure.

(k) Ngcuka did thereafter in response to questions from the press, inform the press that if circumstances changed in the sense of more and better evidence against me becoming available, the decision not to prosecute me would be re-visited and re-considered. His public statement and press release ("D") had however made it very clear that the investigation against me had been completed. The reason for its non-continuation is expressly stated in par 33 thereof.

39.

I deal more fully with the NPA's version of the August 2003 decision.

40.

McCarthy described the process as follows, in the permanent stay papers before Msimang J (I only set out the most relevant portions):

41.

PARA 52:

"... The investigation team accordingly recommended that the NPA institute a criminal prosecution against Zuma."

42.

PARA 53:

"Ngcuka and I did not accept the investigation team's recommendation. After having been given a detailed briefing by the investigation team, Ngcuka stated that whilst there was a prima facie case of corruption against Zuma the NPA's ‘prospects of success are not strong enough. That means that we are not sure if we have a winnable case.' Ngcuka tested his decision with a senior counsel in private practice who is skilled in these types of matters, and he concurred with the decision. ...".

43.

As to the press conference and statement:

PARA 54:

"On 23 August 2003 Ngcuka and Maduna held a media conference at which Ngcuka announced the NPA's decision not to prosecute Zuma. Ngcuka felt it best to announce the decision in this way because by then the investigation had become a matter of intense public interest and debate. As appears from the attached copy of Ngcuka's media statement (annexure ‘LM4'), Ngcuka said that whilst there was a prima facie case of corruption against Zuma the NPA had decided not to prosecute him because it was not sure that its prospects of success were strong enough for a winnable case. He went on to say, amongst other things, that the NPA would be prosecuting Shaik on various charges, including corruption, that the NPA would also be prosecuting the Nkobi group of companies and Thomson-CSF and that the NPA would be referring to Parliament for its consideration of the issue of the declaration of gifts and donations received by Zuma. In the concluding section of the media statement Ngcuka said that the NPA could not continue with a prolonged investigation casting a shadow over Zuma, whilst it was not sure of the outcome. After Ngcuka had made the statement the members of the media asked him a range of questions. In answer to one Ngcuka said that the decision not to prosecute Zuma would be reviewed should any further evidence come to light. Ngcuka answered in this way because he knew that although the decisions to prosecute Shaik and the others and not to prosecute Zuma had been taken, the investigation concerning the arms deal had not been closed. There were also further issues to be established in relation to the matters then to be prosecuted in the Shaik trial."

44.

Ngcuka in his affidavit before Msimang J expressly confirmed the correctness of McCarthy's statement. McCarthy made his statement in his capacity as Deputy National Director of Prosecutions and Head of the DSO (Directorate of Special Operations), positions he held since at least January 2001 when the DSO was extended to absorb the previous Investigating Directorate : Serious Economic Offences.

THE NEXT PERIOD UP TO THE 2005 DECISION TO PROSECUTE:

45.

As set out in the announcement, Schabir Shaik and several of "his" Nkobi label companies were charged.

46.

As a result of the abovementioned investigations and announcement, Schabir Shaik and 11 related corporate entities were thus arraigned in the High Court, Durban, on various charges of corruption, fraud and money laundering (the precise charges appear from the indictment which is annexed hereto marked "E"). The criminal trial of Shaik and these above entities commenced on 11 October 2004 and it was concluded on 8 June 2005. The main counts can be succinctly summarised as follows:

COUNT 1:

47.

The Accused paid money to or on behalf of Jacob Zuma in contravention of Section 1(1)(a) of the Corruption Act 94 of 1992 constituting a generally corrupt relationship between them.

COUNT 2:

48.

Shaik and some of the corporate entities committed fraud by misrepresenting the true nature of writing off certain loan accounts in Kobifin (Pty) Ltd.

COUNT 3:

49.

Shaik contravened Section 1(1)(a)(i) of the Corruption Act 94 of 1992, in that Shaik, Zuma and certain Thint companies agreed that Thint would pay a bribe to Zuma in return for Zuma's protection of and support for Thint.

50.

Shaik and the corporate entities were convicted in a judgment with delivery thereof commencing on 31 May 2005 and ending on 2 June 2005.

51.

All the accused were convicted on Count 1 for paying money to or on behalf of Jacob Zuma in contravention of section 1(1)(a) of the Corruption Act, 94 of 1992. This was what the Prosecution described as the manifestation of a generally corrupt relationship between Shaik and Zuma with the payments to secure Zuma's goodwill and favour for Shaik.

52.

Shaik was convicted on Count 3 for contravening section 1(1)(a)(i) of the Corruption Act, 94 of 1992. This charge related to a corrupt agreement between Schabir Shaik, Jacob Zuma and certain persons and entities within the French and the local THINT (formerly Thomson CSF) group, that THINT would pay a bribe to Jacob Zuma in return for Zuma's protection of and support for THINT.

53.

The accused were sentenced on 8 June 2005.

54.

The court sentenced Schabir Shaik to a term of 15 years imprisonment in respect of each of the corruption charges (Counts 1 and 3) and 3 years in respect of the fraud charges (Count 2). The sentences on Counts 2 and 3 were ordered to run concurrently with the sentence on Count 1.

55.

These events gave rise to renewed calls, especially in the press, for my prosecution and dismissal as Deputy President of the Republic of South Africa.

56.

The decision to prosecute me was announced by the NPA on 20 June 2005 and I was charged on 29 June 2005 with two counts of corruption which mirrored the corruption charges against Shaik (Count 1 and 3 above). I deal more fully with this hereafter.

57.

I quote the description of the 2 offences that I was charged with as these were summarised by the NPA in its application for a search warrant some 1½ months later in the founding affidavit thereof deposed to by Mr Du Plooy, the NPA's main investigator in respect of my affairs:

"The National Director decided on 20 June 2005 to prosecute Jacob Zuma on at least two counts of corruption in contravention of section 1(1)(b) of the Corruption Act, 94 of 1992. These counts relate to the same facts on which the convictions of Shaik and his companies were based. Consequently, Jacob Zuma appeared in the Durban Magistrate's Court on 29 June 2005. The matter was postponed to 11 October 2005 for further investigation." (The Counts are inversions of Count 1 and Count 3 which Shaik had been charged with and convicted of - while those focussed on Shaik as the bribor, with me the bribee, the two Counts against me postulated the same relationship and essential facts as those in these Shaik counts, and focussed on me as bribee.).

58.

It is simply inconceivable that the NPA and especially the NDPP were not aware and very conscious of the provisions of Section 179 which is the THE Constitutional provision which creates and places in constitutional hierarchy and context, the NPA. The decision to reverse the previous decision and to charge me and the implementation thereof were all done by the NPA in deliberate violation of the Constitution. This was done, I can only infer, from a political motive which required me to be charged as soon as possible. It suffices to say that from the skirmishes between me and the NPA as litigants, no noble motive for this unseemly hasty conduct has emerged or has been suggested.

59.

At the risk of belabouring the issue, the decision to prosecute or not prosecute some-one, especially for a offence which carries a 15 year minimum sentence, is an extremely important one. In my case, the decision to prosecute not only exposed me to the above threat as real in the sense of one to be faced in the court room, but it was also the direct cause for my dismissal as Deputy President of the country and rendered me unemployed. The prior decision in August 2003, not to prosecute also held highly significant consequences for me. One arranges one's entire life in accordance with the outcome of such decision. After 2003 I continued my political career and made numerous decisions based on the import of the decision not to prosecute which, despite Ngcuka's press remark of possible future reconsideration, had an air of finality about it which I accepted as such. This is in line with the official Prosecution Policy.

60.

The mere fact of being actually charged with a criminal offence has immediate negative consequences for the Accused. In principle one loses one's liberty (certainly in respect of all serious charges) save for bail. In this instance the NPA used the effect of the bail conditions to launch an investigation into my financial affairs which violated my privacy as well as contravened various other rules and norms. The initial harm is thus not self-contained.

61.

Ngcuka termed the decision not to prosecute me as the most important decision to prosecute or not taken since the advent of the Constitutional State (this is the clear implication of his opening remarks). Pikoli was now reversing this decision - that must have been as, if not more, momentous and called for strict observance of the legal requirements.

62.

In these circumstances the need, importance and obvious sense of calling for representations were obvious - so obvious that the omission thereof could only be deliberate and driven by powerful forces.

63.

I submit that the circumstances of my dismissal and the very obvious political consequences and motives which influenced the public debate to prosecute me or not, could not but have brought home to the NDPP the need to comply with Section 179(5) in respect of calling for representations.

64.

There are a number of aspects about the decision to prosecute Zuma announced by the NDPP, Pikoli, on 20 June 2005 which are highly relevant to the NDPP's failure to comply with the clear dictates of Section 179(5) of the Constitution. Some of these aspects have been addressed both by Zuma and the NDPP in the applications for a postponement by the NPA of the criminal trial in respect of Zuma's prosecution and for the permanent stay of the prosecution which came before Msimang J for argument in September 2006. I mention that the permanent stay application was not heard as the striking from the roll of the criminal case meant that there was no longer a prosecution to be stayed (these proceedings are dealt with hereafter).

65.

Shortly before the 20th (on or about Sunday, 6 June 2005), I was requested by the President of the RSA, through others, to resign in the light of the Shaik judgment. The request at that time was hard to justify on any legal basis. I refused to resign from the office of Deputy President of the RSA. The President then dismissed me on 14 June 2005. I annex hereto, marked "F" the text of the President's announcement. He foresaw therein me having my "day in court".

66.

Pikoli's contention that the decision was his alone, was based solely on the question of reasonable prospects of success, and that he never at a prior period discussed this with the President during the visit to Chile referred to hereinafter, must be seen against that backdrop (and so too the subsequent decision to prosecute me).

67.

I firstly point to the absolute conundrum which would have arisen if Pikoli had on the 20th of June 2005 announced that he had decided not to prosecute me despite the President's assertion made in the contended total ignorance of what Pikoli's decision would be, that I was to have my day in Court. How would that ever be? The President's announcement clearly came to Pikoli's notice - its impact was likewise clearly obvious.

68.

Insofar as there may be a suggestion that my dismissal as Deputy President was not induced by the charges brought against me as these post-dated the President's decision to dismiss me, this is simply wrong. The President, I believe, could not have made the decision to dismiss me simply because I was implicated in Shaik's conviction. That outcome was foreseen on 23 August 2003. I was not an accused and the Shaik trial's outcome was expected on the State's version. That is exactly why he was prosecuted and I not. If there was to be no prosecution, how could my situation then ever be resolved? I surmise that the NDPP, Mr. Pikoli, briefed the Honourable President on the upcoming charges during the approximately 5 days the National Director was with President Mbeki during their visit to Chile immediately prior to my dismissal. The fact of Mr Pikoli accompanying the President to Chile was established and known. I annex hereto, marked "G" a copy of an article published in The Cape Times on 7 June 2005, headed "Mbeki to Decide on Zuma's Political Future". Mr Pikoli has as is apparent, denied this.

69.

In the permanent stay application, it was sought to demonstrate that the decision to prosecute me was dictated by political motives. Hence it was sought to establish this by negating other reasons for the reversal of the decision not to prosecute me in August 2003, in particular that nothing had emerged from the Shaik trial in the form of new evidence which would justify the about face. This provides the context for the following exchanges which I quote below:

70.

In the permanent stay application, I pertinently challenged the contention that the Shaik judgment could serve as a basis for the reversal of the decision not to prosecute and challenged the State pertinently to provide details of any new evidence which informed the reversal. I quote the relevant paragraph:

" AD PARAGRAPH 11

The deponent coyly does not indicate what startling new evidence was discovered which changed prospects of a loss into a victory. The date of the 20th is disputed. That could never have been a considered and proper decision. I challenge the deponent to put up the evidence which changed the prospects of success so dramatically so as to warrant prosecution. It must be exact in response - generalisations will not suffice. It is perfectly clear that the change of decision was simply a reaction to the Shaik judgment if it was not a deliberate stratagem, decided at the very outset when Shaik alone was charged. "

71.

This challenge was not taken up and in my reply I pointed out:

"I respectfully submit that, despite several pages devoted to the topic by McCarthy (para 88) and Pikoli (paras 6 - 13) there is not a shred of substance to the contention that the evidence available to the National Prosecuting Authority in June 2005 was any different to that available in August 2003 when the decision not to prosecute me was announced. The so-called "new evidence" which is alleged to have come to light during Shaik's trial is not identified, for reasons unexplained."

72.

"The victory in the proceedings against Shaik was clearly exactly what the NDPP had foreseen when the 23 August 2003 announcement was made. Such victory implied, from the outset, the acceptance of the State's case by the Court. In short, up to now no evidence has been identified which informed the 2005 decision to prosecute me." (I also commented that if there were such new facts and evidence these clearly had not found their way into the November 2005 indictment).

73.

It is in this context that the NDPP's failure to comply with the provisions of Section 179(5) must be considered. Where such extraneous factors as the politics of the day and a change in decision without any new evidence are present, there is indeed an obligation to be extra vigilant in ensuring compliance with Section 179(5) to the fullest extent. And if there is new evidence, surely one seeks an explanation from the person to be charged in these circumstances.

74.

There was no reason why Section 179(5) could not be given full effect - one may postulate exigent circumstances where a decision not to prosecute may be reversed as a matter of urgency - i.e. new evidence of guilt which creates an immediate flight risk. None of the practical limitations on the obligation to give full effect to Section 179(5) apply herein and, rightly, none of the considerations have ever been mooted.

75.

In this regard I point out that I do have what I and my legal representatives consider to be important and weighty facts, circumstances and considerations to put before a NDPP who is in a position to make an unbiased judgment and decide whether to reverse the 2003 decision or not. Obviously this decision should be made in the context of whether the previous decision not to prosecute me should be reversed, as opposed to the subliminal mindset to defend one's own decision already made. I have also been advised that it is not necessary and indeed, not proper, to put before this Court what I intend putting before the NDPP - it is his decision which is relevant. Indeed, I have been advised that there is strong principle and case law to support that it is wholly irrelevant as to what the content of my representations will be once an important right to be heard prior to the taking of a decision has been negated by the decision-taker. I shall simply refer to the well established dicta that the legal field is replete with unanswerable cases which were indeed answered when the occasion arose.

76.

These sentiments in law are important not only as a principle in law but indeed at a common sense level.

77.

I thus just mention the type of consideration which is intended to be addressed.

78.

In the permanent stay application which was brought in my prosecution before Msimang J, I made reference to the following:

79.

" What is particularly disturbing is the following paragraph in the indictment served on me:

" Protection against investigations pertaining to alleged irregularities in respect of the arms deal

89. ...

93. In a letter dated 19 January 2001, written in his capacity as "Leader of Government Business" in Parliament, accused 1 addressed a long letter to Gavin Woods, then chairperson of the Parliamentary Standing Committee on Public Accounts. It included the contention that there was no need for the Heath Unit to be involved in any investigation of the arms deal."

In S v Shaik the indictment read:

 

"N. ZUMA'S REACTION TO THE INVESTIGATION OF THE ARMS DEAL

125. In a letter dated 19 January 2001, written in his capacity as "Leader of Government Business" in parliament, Zuma wrote to Gavin Woods, then chairperson of the Parliamentary Standing Committee on Public Accounts:

"Furthermore, we are convinced that [..] there is no need for the ‘Heath Unit' to be involved in any ‘investigation' of the defence acquisition.

We hope this strange manner of proceeding was not driven by a determination to find the Executive guilty at all costs, based on the assumption we have already mentioned, that the Executive is prone to corruption and dishonesty."

80.

The letter in question was not drafted or composed by myself or my office. It was word for word drafted by the President's office and forwarded to me with an instruction that I should sign it. I did comply. There can be little doubt that even the most superficial investigation must have revealed that to the prosecution. I can only infer that the Prosecution knew this at the outset and indeed also when it drafted the indictment in this case. It knew full well the indictment would be eagerly published in various formats by the press. It must have known that the passage in question, together with the exposition in the Shaik judgment would give the very clear impression that the composing and signature of that letter by me were exactly what I got paid for. It knew and knows that that is, in fact, false.

81.

When the President, in early June 2005 (prior to his Chile visit) discussed the Shaik outcome with me, I pertinently pointed out to him that the Court in Shaik's case had been misinformed about the source and responsibility for the letter. He agreed with me and undertook to put things straight about the letter on his return. He did not do so and subsequently apologised for this to me.

82.

What I say is correct - the honourable President himself has publicly pronounced this. I annex hereto but one newspaper report (which has never been contradicted, denounced or qualified despite the ease with which the President's office can do so and its obvious knowledge thereof) and mark it "Q". "

83.

I simply put this up as an illustration of the type of representation which can legitimately and will likely be submitted.

84.

In this regard I also point out that there are some very confidential aspects involving third parties which explain features which the NPA currently regards as incriminatory (I base this observation on the affidavits put up by the NPA before the Judge President of the TPD in the ex parte application for the search warrants). These are best dealt with in representations. In short, I have been advised that it is neither necessary nor helpful to discuss the details of these sort of issues before this Court. I do not thus seek to make a case that the representations to be made are likely to be successful. That would be premature to do so. The remedy for a disregard of weighty and sound representations is an ex post facto one; not a prospective one. This application is about the unlawful denial of an opportunity to make these representations.

85.

Moreover, it is not only representations as to guilt or innocence which impact on the review of the 2003 decision.

86.

It has always been recognised that the South African system is not one of compulsory prosecution whenever the State has a prima facie case against an individual. There is a wide discretion not to prosecute based on other factors. Paragraph 4(c) of the Prosecution Policy issued by the NDPP in terms of Section 21(1)(a) of Act 32 of 1998 provides as follows:-

"(c) Prosecution in the public interest

Once a prosecutor is satisfied that there is sufficient evidence to provide a reasonable prospect of a conviction, a prosecution should normally follow, unless public interest demands otherwise.

There is no rule in law which states that all the provable cases brought to the attention of the Prosecuting Authority must be prosecuted. On the contrary, any such rule would be too harsh and impose an impossible burden on the prosecutor and on a society interested in the fair administration of justice.

When considering whether or not it will be in the public interest to prosecute, prosecutors should consider all relevant factors, including:

...

It is important that the prosecution process is seen to be transparent and that justice is seen to be done."

(The full text of the Policy has been annexed hereto marked "H". Reliance will be pleased on its provisions).

87.

In that application I also in the founding papers made it clear as to what the effect of the charges were:

" 48.

The bringing of the charges impacted extremely severely on me. I lost the Deputy Presidency. It clearly impacts severely on any employment opportunities - I am effectively unemployed and quite unemployable given the pending charges. It has cast a social pall over me; I am viewed with suspicion. I have been branded a corrupt criminal in the press, they being emboldened by the decision to prosecute me. My future political role and my eligibility as a candidate for the Presidency have been severely and negatively affected by the fact that I am an accused on corruption charges. It has placed a tremendous strain on me in my personal life. "

88.

The importance of such a decision as a legal fact is also, I am advised, recognised in other jurisdictions. This will be addressed in argument. The decision to prosecute me was clearly in submission a hasty one and an ill considered one when there was no reason for this. In this regard I point to the following:-

(a) Some 6 weeks after being charged, the NPA carried out extensive search and seizure operations in order to seize evidence for the prosecution. Ironically one of the reasons given for the pervasiveness of the search was the desire to unearth exculpatory material which could be considered in my favour. An opportunity to make representations would have been the ideal method of eliciting this. One would expect such activities to precede the decision to prosecute.

(b) I was never a flight risk nor was it ever thought that I would interfere with witnesses. There was no reason pertaining to the legal process as to why I should have been charged in such haste (Bail was agreed between the legal representatives and endorsed by the Court in the amount of R1,000.00).

(c) The indictment was only served on me during November 2005.

89.

The point that is sought to be made is that there was every reason why representations could have proved awkward for the NPA. The justification for the reversal of the decision to prosecute me would clearly have come under attack. This would clearly have become a major dispute if I was asked to make representations as to whether the decision not to charge me should have been reversed. I reiterate:

(a) I was charged with the mirror images of the Shaik charges. The indictment served on me, even in November 2005, mirrored the Shaik charges - if I was charged with Shaik that is exactly how the charges would have read; I would have featured in the joint trial as the bribee, Shaik as the bribor. The November indictment even had the same list of 102 witnesses for the State.

(b) There was no answer as to why the decision was to be reversed based on what may legitimately have served as a basis for such a change in decision. The challenge to specifically identify the new evidence was not taken up by the NPA in the papers before Msimang J. Clearly the Respondent did not wish to disclose or reveal any pressure or political influence, consideration or manipulation which affected the reversal, for that would have greatly strengthened my contentions that a very real political agenda drove my prosecution. Such a revelation would obviously have been perceived as strongly influencing public sentiment and rallied political support behind me. The mere debate on these issues would prove irksome for the NDPP.

90.

In the papers before Msimang J, I stated the following:

"I was dismissed as the Deputy President of the Republic of South Africa as a result of the two charges brought against me - the very charges the prosecution now says they are not in a position to go to trial on. It was obvious that the bringing of the charges would bring me into serious disrepute. In the context it meant that the State must by then (before 20 June 2005) have obtained evidence that demonstrates my guilt beyond reasonable doubt- that could be the only basis for the volte face on the decision to prosecute. I hasten to add that I have never been asked to comment on the new evidence or to answer it - this was indeed called for given the earlier decision not to prosecute me and the legitimate expectation it engendered in me.

[Par 46 (my underlining)].

91.

This evoked the following response to the last part:

PAR 197.6:

"Zuma was invited to respond to a range of questions relating to the investigation in 2003, as mentioned above. His answers did not assist the investigation. It would have been futile to elicit a further response from him after the Shaik rial (as evidenced now by his reiteration in his affidavit of many of the answers given in 2003).

92.

PAR 197.7:

"It is denied that the decision not to prosecute Zuma in 2003 could have engendered any legitimate expectation that he would never be prosecuted again - Ngcuka said that he might well be."

 [McCarthy].

93.

I have been advised that this response is flawed at both the factual and legal level. I have never addressed the merits of the prosecution's case in representations. The deponent McCarthy had no idea of what I would say in such representations if I consider they shall be seriously considered as such - representations are wholly different from adversarial conflict in legal papers. It suffices to say that there are numerous policy aspects ranging from the national interest to my individual interests and issues such as selective prosecution, fair trial rights etc which will be dealt with in such representations. Moreover, representations are clearly not confined to matters of guilt or innocence. Nor does my expectation relate to not being charged; it related and relates to being given an opportunity to make representations prior to the decision being taken to reverse the 23 August 2003 decision.

94.

I was not at that time (June 2005) aware of the provisions of Section 179(5) of the Constitution. If I had been so aware, I would have sought advice as to the manner in which to deal with the NDPP's non-compliance with Section 179(5). I would not have let it pass. The legal team I had engaged in July 2005 had their hands full with the applications to set aside certain search and seizure warrants executed in August 2005, a rape trial wherein I was the accused and preparing for a corruption trial on the merits. The corruption trial was said to be the mirror image of the Shaik trial which itself had run for several months. It was only when the State indicated that it intended to apply for a postponement of my criminal trial set for 31 July 2006, that the issue of a permanent stay became pertinent and the whole history of the prosecution was considered.

95.

Pikoli has proclaimed that the decision to prosecute me on 20 June 2005 was his and his alone; he had merely, after it had been taken (on 20 June 2005), advised the President of the RSA of the decision as a matter of courtesy.

96.

The relevant portions of Pikoli's affidavit in the permanent stay application before Msimang J are the following:

PAR 8:

"Following the successful prosecution of Mr Shaik, who was Accused No 1's financial advisor, I requested the prosecution team to brief me inter alia on the significance of the court's findings vis-à-vis Accused No 1 and whether there was now a reasonable prospect of a successful prosecution against him."

97.

PAR 9:

"I did this with a view to revisit my predecessor's decision in August 2003 not to prosecute."

98.

PAR 12:

"After considering their recommendations and studying the Shaik judgment and discussing the issues with my senior advisors, including the Head of the DSO, I came to the conclusion that there was indeed a reasonable prospect of a successful prosecution against Accused No 1, hence I took a decision to institute a prosecution against him. The decision to prosecute was based solely on my assessment of the admissible evidence and the prospects of a successful conviction and nothing else."

99.

At no stage after the Shaik verdict (indeed at no stage since 2003), were I or my legal representatives approached and informed that the decision not to prosecute me is being reconsidered and representations from me invited on the issue of a reversal of the earlier decision. I was not told as to what the new evidence was or what had caused the urgent need for a reconsideration. In the light of the circumstances, I can only infer that the failure to invite representations from me was deliberate and done with full knowledge that the provisions of Section 179(5) are being negated.

100.

Pikoli indeed approached me personally (on the 20th of June 2005) and informed me that the decision had been taken to prosecute me and that my trial would commence and be completed with expedition - in short, the decision to prosecute me was a fait accompli and the implementation and conclusion would be rapid.

101.

It is also of some relevance to note that the NDPP's failure to observe the provisions of Section 179(5), was pertinently albeit obliquely raised during the argument before Msimang J as to the postponement sought by the State. It was contended on Zuma's behalf that if the Court was in any doubt whether to refuse the adjournment sought, the non-compliance with Section 179(5) should sway the decision: granting the postponement would simply keep alive a prosecution which inevitably would immediately thereafter be set aside. It was a pointless exercise to grant the postponement. The NDPP's representatives did not take issue with the factual aspect of non-compliance in the sense that no consultation was ever invited or sought by the NDPP (arguments were raised at the level of interpretation and the futility of inviting representations as these would not dissuade the NDPP from prosecuting). The Court was, however, not in any doubt as to refusing the postponement and disregarded this debate. What is important is that the NPA was made fully aware of the complaint re non-compliance with Section 179(5) and left in no doubt that Zuma wished to be granted an opportunity to make representations prior to any decision to prosecute.

THE PERIOD UP TO 20 SEPTEMBER 2006:

102.

The period which followed my appearance in Court on 29 June 2005 was a busy one. A subsequent Court appearance in the Regional Court, Durban, was followed by the decision of the NDPP to transfer the matter to the High Court. Trial dates were allocated by the Judge President of the NDPP in consultation with all the parties. The trial was to proceed on 31 July 2006. A High Court indictment was, as indicated, subsequently served on me in early November 2005.

103.

On 18 August 2005, search and seizure operations were carried out against me and some of my legal representatives based on warrants obtained ex parte. Residences of my family and offices wherein I had worked previously were also targetted.

104.

It emerged later that on or about 11 or 12 August 2005, after I had been charged, warrants of search and seizure were applied for on an ex parte basis and issued on 12 and 15 August 2005. These were applied for in the TPD from the Judge President. These warrants in respect of me:

(a) Related to various homes and work-places of myself and my family (and also the offices of Parliament and SARS).

(b) Were in my contention grossly invasive and overbroad and included very wide and pervasive search and seizure provisions

105.

The search and seizure operations were carried out by some 300 persons acting on behalf of the prosecution authorities in a number of armed raids at the crack of dawn. An application was brought to set aside these warrants which order was granted by the Durban and Coast Local Division of the High Court in February 2006.

106.

The warrants in respect of my attorney, Mr. Hulley, and myself were set aside. These raids were declared unlawful and the State was ordered to return all material seized. The State was granted leave to appeal to the Supreme Court of Appeal ("SCA") and the SCA reversed the order of the High Court in a 3/2 split decision. This decision is itself in turn presently the subject of an appeal to the Constitutional Court, in which the application for leave to appeal, together with the merits, was heard in early March 2008. Judgment has not yet been delivered.

107.

Other litigation was also in progress. A rape charge against me in late 2005 resulted in a lengthy criminal trial in Pretoria ending in an acquittal in 2006. Litigation regarding Letters of Request to Mauritius and requested further particulars (with Thint the main protagonist) also ensued.

108.

The State then brought an application for the postponement of the criminal trial which was due to commence on 31 July 2006. The application for the postponement was heard by the trial Judge, Msimang, J. who on 20 September 2006 refused the State's application for a postponement of the criminal trial. Having refused the State's application for a postponement, Msimang, J. thereupon enquired of the prosecution whether the prosecution intended to withdraw the charges, including the charges against me as Accused No. 1. The Prosecution ostensibly left it to the Court to decide what to do with the matter. The State placed on record that the State did not withdraw the charges. Should this be disputed in answer, I shall put up in reply a transcript of the proceedings on 20 September 2006 when judgment was delivered. The State having declined to withdraw the charges, Msimang, J. ordered that the matter be struck from the Roll.

109.

Much of this history is contained in the judgment of the Honourable Msimang J of the High Court of the Natal Provincial Division. I annex hereto a copy of the judgment and mark it "I". There is thus neither need nor sense to debate the issues addressed by him.

110.

I simply reiterate that the history of my prosecution even in the abbreviated format set out herein, clearly allows room for representations within the parameters of the above policy. The delay issue, fair trial rights being jeopardised and the harm already done to me through the prosecutorial process are but some obvious areas which call for representations.

THE PERIOD FROM SEPTEMBER 2006 TO THE PRESENT (AND MAY 2008):

111.

Subsequent to the striking off of the matter, the NDPP publicly proclaimed that a consideration of the issues would be undertaken and that a re-starting of the prosecution may be imminent.

112.

I annex hereto copies of some of the newspaper articles reporting this Statement of Pikoli, the then NDPP marked "J".

113.

On 4 December 2006, the NDPP brought an application for the issuing of a letter of request in terms of Section 2(2) of the ICCM Act 75 of 1996.

114.

In the founding affidavit on behalf of the NDPP, the deponent, McCarthy stated:

Volume 1, p36, par 35:

"35. There is a reasonable prospect that charges could in future be re-instituted against one or more of the erstwhile accused and/or others, more particularly since the Supreme Court of Appeal has in the interim comprehensively confirmed the findings of the trial court. (The judgment is too lengthy to attach hereto, but an electronic copy can be forwarded on request). However the National Director has not yet decided whether to do so and if so, on what charges. The indictment may differ in certain respects from the one attached hereto (see below), but is likely to contain at least the charges set out therein.

[The reference is to the Trial Court in S v Shaik and Others].

36 In the result, there are presently no criminal proceedings pending against the erstwhile accused ... "

115.

This was repeated later in that affidavit:

Volume 1, p38 at par 43(c) of the LOR:

"The investigation is continuing and there is a reasonable prospect that the criminal proceedings could be reinstituted in the near future."

116.

The deponent to the Founding Affidavit of the LOR application testified likewise:

Volume 1, p6, par 17:

"There is a reasonable prospect that charges could in future be re-instituted against one or more of the erstwhile accused and/or others, more particularly since the Supreme Court of Appeal has in the interim comprehensively confirmed the findings of the trial court. (I do not propose to burden the record with a copy of this judgment, but I am informed that one will be made available to the judge in chambers, if required.) However, the National Director has not yet decided whether to do so and, if so, on what charges. The indictment may differ in certain respects from the one attached hereto (see below), but is likely to contain at least the charges set out herein."

117.

This sentiment was repeated in a replying affidavit deposed to by one Isak du Plooy, for the NPA:

Volume 9, p737, paragraph 99.2:

"I confirm that no decision has been taken regarding the prosecution. Respondents contended that the State had been remiss in bringing charges before the investigation was completed. The matter was accordingly struck off the roll. The matter of the search warrants remains unresolved. It is impossible to predict when a decision will be able to be made."

(The matter of the search warrants and the Mauritius LOR at the time of deposition remain unresolved pending the Constitutional Court rulings).

118.

This application was opposed by myself and the Thint Companies as Respondents and the matter was argued on 22 and 23 March 2007.

119.

The Court held that it would issue the LOR sought, in a judgment dated 02 April 2007. The Respondents sought leave to appeal against this decision, which leave to the SCA was granted, on 23 April 2007. The appeal was heard on 21 September 2007. The SCA refused the appeal. That decision is now the subject of an application for leave to appeal to the Constitutional Court, which was heard on 12 and 13 March 2008 (a combined hearing of the application for leave and the merits).

120.

The appeal to the SCA in the warrants matter was heard on 28 August 2007 and the decision of the Court a quo was reversed by a majority 3/2 decision on 08 November 2007.

121.

As indicated above, the SCA judgment in the warrant application is the subject of an application for leave to appeal to the Constitutional Court which was heard on 11 and 12 March 2008, immediately preceding the LOR appeal which was argued on 12 and 13 March 2008.

122.

On the political front, the new hierarchy of the ANC office bearers was to be elected at Polokwane. The position of the President of the ANC was in particular a hotly contested one with myself and the current President of the RSA, President Mbeki, the main candidates. This contest had attracted a great deal of general interest and media interest almost throughout the year of 2007.

123.

Ever since the NDPP made the statements I have referred to above, and the NPA had launched the Section 2(2) LOR application in respect of the documents in Mauritius, I and those who wish me to occupy a leadership role in the ANC, were concerned about criminal charges being re-launched at all and moreover being launched at a critical time in the political process. Indeed in mid-2006 in respect of the postponement application, already concern was raised in argument about a stratagem to cloak me in the guise of an accused at the critical moment in the political process and so to hamper the prospects of my election as ANC President (or whatever other position the delegates would see fit for me to occupy).

124.

In the result my attorney of record addressed a letter to the NDPP requesting an opportunity to make prior representations in respect of any decision to charge me criminally in respect of the subject matter of this investigation against me. This letter speaks for itself and I annex a copy marked "K".

125.

The NDPP's laconic reply dated 12 October 2007 was to the effect that they were not reviewing the decision to charge me. I annex a copy of hereto and mark it "L". The content and meaning hereof in the context of what has gone before can at the very least be described as enigmatic. It would clearly have enhanced the credibility and impartiality of the decision to prosecute or not if it had been taken after hearing representations and if feasible prior to the Polokwane elections.

126.

In the run-up to the Polokwane elections the NPA, some days before the elections were to take place, clearly leaked reports to the press that the NPA is ready to charge me. I annex these reports hereto and mark them "M". On the last day (Thursday 20 December 2007) of the Polokwane conference (the acting NDPP) Mr Mokotedi Mpshe said by way of a reported statement that a decision on prosecuting me was imminent and intimated clearly that that decision would be to prosecute me. It was difficult to know what to make of this - whether it was seriously intended or merely made for its impact at the time, given the still unresolved nature of the warrant and LOR matters and the earlier enigmatic reply. This subsequent decision of the acting NDPP effectively reversed the 2003 decisions of both Ngcuka and McCarthy - it followed in result Pikoli's decision. Needless to say no opportunity to make representations was afforded to my representatives; let alone a reasonable opportunity.

127.

I digress to deal with the Counts in the December 2007 Indictment simply to demonstrate that Mr Mpshe dealt with essentially the same subject matter as Mr Pikoli, Ngcuka and McCarthy previously.

128.

The decision to prosecute me manifested itself in the form of the service of the indictment on 28 December 2007.

129.

The subject matter of the indictment of 28 December 2007 falls into 3 broad categories. I deal with these below:

130.

Category 1 relates to payments made by Shaik and his group of (Nkobi) companies to or for my benefit in pursuance of a corrupt relationship between myself and Shaik. This is the same essential conduct which formed Count 1 of the Shaik indictment, the November 2005 indictment of Zuma and the December 2007 indictment of Zuma. It covers the period following the end of the initial period up to 30 September 2002 with which Shaik was charged but it is clearly simply a continuation of the same form of conduct which made up the alleged generally corrupt relationship between Shaik and Zuma. In short, it is simply more of the same conduct said to constitute the unlawful generally corrupt relationship alleged throughout.

131.

The second category relates to the charge that Zuma, the Thint group and Shaik were parties to a specific corrupt tri-partite agreement involving payments to Zuma to promote and safeguard the interests of the Thint group of companies. This is the mirror image of Count 3 in the Shaik prosecution and virtually identical to Count 2 in the November 2005 Zuma indictment.

132.

I now deal with the counts in the indictment relating to violations of the provisions of the Income Tax Act 58 of 1962 as amended.

133.

These charges typify the improper convict Zuma at all costs "leitmotif" which permeates the NPA's prosecution of myself. Should an application for a permanent stay become necessary this issue shall be vigorously pursued. In the application to set aside the search and seizure warrants I have already denounced the extension of the official investigation against me, allegedly on 8 August 2005 (a copy hereof is annexed hereto marked "N".

134.

However, given the limited ambit of this application it is only necessary to refer to one aspect of the history and context of the alleged tax offences. The core of the averments regarding the so-called tax offences was summarised by Du Plooy, the NPA's deponent in its ex parte application for the search warrants as follows:-

Addendum, Volume 8, p602, para 37.2 (d):

"The investigation regarding these offences was recently declared. The offences arise from the payments to or on behalf of Jacob Zuma by Schabir Shaik and/or the Nkobi group and/or Thomson/Thales. It is obvious from all the above that the payments were corrupt benefits bestowed upon Zuma in expectation of a quid pro quo. In this sense they were income earned by Zuma. There is a reasonable suspicion that they were not declared to the South African Revenue Service as required or to Parliament, particularly as it was Shaik's defence that his payments to Zuma were loans."

135.

In short, the contention was that Zuma should have declared the monies received form Shaik as a taxable benefit and probably did not do so. It is self-evident that these monies were not declared as income or a benefit by Zuma - in short he did not declare these as income and hence as bribes. Whether the income tax provisions were contravened or not, depended on whether the essential charge of corruption succeeded or not. If it did, it followed almost inevitably that the said provisions were contravened and vice versa.

136.

With the greatest respect, this was an ancillary consequence of the corruption charges since 2001 when Zuma was first specifically intensively and officially investigated by the NPA.

137.

The issue I wish to highlight is that in conjunction with the denouncement of the tax fraud investigation the following point was made by Zuma in the warrant application litigation after stating that he obviously had not declared the monies as income because the payments were not bribes : Zuma's founding affidavit:

Para 57:

"The allegations concerning fraud and contraventions of the Income Tax Act are apparently based on an allegation that I did not declare moneys allegedly received from Shaik or Shaik companies as income in the form of bribes to the SARS and Parliament. Analysis does not in any way ameliorate the patent absurdity of this approach."

138.

Para 58:

"SARS has the capacity to prosecute tax offenders and frequently does so. It has a battery of specific statutory provisions operating in its favour in this regard. I am advised and respectfully submit that it is, with respect, highly unusual for charges of misstating income to SARS to be prosecuted in the High Court by members of the first respondent's office. The accusation of a failure to declare the proceeds of robbery and theft could be levelled at just about everyone prosecuted in the High Court for theft or robbery during the past 20 years. I know of no such prosecution. "

139.

Para 59:

"There is no allegation in Du Plooy's affidavit of any complaint by SARS in respect of the alleged fraud or contravention of the Income Tax Act. The respondents are challenged to produce such a complaint. A similar challenge is made in respect of the alleged declarations to Parliament.

140.

The NPA's answer was the following:

Para 36:

"(a) A broad statement of the allegations concerning fraud and the contravention of the Income Tax Act is contained in paragraph 37.2 of du Plooy's affidavit in support of the warrants. Save as is consistent with that statement, paragraph 57 is denied.

(b) (i) The allegations made in the first three sentences of paragraph 58 are disputed. Tax offences are prosecuted by specialist prosecutors in the employ of the NPA. There are no statutory provisions affecting such prosecutions, but there are statutory provisions which operate in respect of tax investigations in favour of SARS.

(ii) The remaining allegations in paragraph 58 are not disputed. However, the first applicant himself points out that this is not an everyday case.

(c) The alleged contraventions of the Income Tax Act are integrally connected with the other charges being investigated, which fall outside the domain of a SARS investigation. In any event, the respondents remain obliged to investigate offences which fall within their mandate. In terms of Section 28(1)(c) of the Act, the Investigating Director may at any time during the conducting of an investigation, if he considers it desirable to do so in the interests of the administration of justice or in the public interest, extend the investigation so as to include any offence, whether or not it is a specified offence, which he or she suspects to be connected with the subject of the investigation.

(d) Whilst it is correct that no complaints have been received of the sort which the respondents are challenged to produce, the respondents remain obliged to prosecute crime where it comes to their attention. I accordingly respectfully submit that paragraph 59 is irrelevant. "

141.

The NPA accepted herein that there was no complainant in respect of these charges. There is still no complaint from SARS in respect of these counts. The NPA is on an improper frolic of its own.

142.

It is clear that the one entity which can readily determine in the event of a successful prosecution on the corruption charges or otherwise whether there was a contravention of the provisions of the Income Tax Act, would be SARS. They would have all the documentation and other evidence to establish what a tax payer declared or should have declared etc. unhampered by secrecy provisions of the Income Tax Act.

143.

Clearly, SARS was not only the true complainant if there was to be a complainant, but on any basis it was a party with a very real and particular interest in any decision to prosecute or not to prosecute a person under the provisions of the Income Tax Act.

144.

I have thus been advised that it is self-evident that SARS is the entity which is to determine whether a taxpayer is to be prosecuted and the extent to which the individual is to be prosecuted under the provisions of the Income Tax Act. The function of SARS to recover monies from tax-payers could otherwise be severely interfered with. It was wholly improper and unlawful of the NPA to institute such prosecutions under the Income Tax Act, without the necessary consultations and go ahead from SARS. Full legal argument will be advanced on this aspect.

145.

It is contended that the NPA was very well aware of this. It was well aware of the fact that I had been in discussions with SARS in connection with my tax affairs. It was well aware that SARS would not have agreed to such prosecution and would indeed in all probability have been opposed to this. Its conduct in seeking a search and seizure warrant from Ngoepe JP of the TPD, in respect of SARS records demonstrates this. The NPA's conduct further blatantly ignored the Constitutional injunction in Section 41 of the Constitution, especially sub-sections (e), (f), (g) and (h).

146.

The truth of the matter is that my legal representatives, and particularly my attorney, Mr Michael Hulley, have for some years now had discussions and negotiations to regularise my income tax affairs vis-à-vis SARS. I have been advised by my legal representatives to do so for it is the right thing to do for a person in my position and political role. I have been advised that even if I consider certain monies not to be income in my hands, to accept a globular assessment in this regard so as to ensure that my political enemies would not have any reason to make political capital out of my income tax affairs. I have accepted this advice. Needless to say, the Prosecution's case against me was a considerable complicating factor in the negotiations which followed.

147.

In the end the dispute between myself and SARS was resolved with a large amount being paid to settle the amount of SARS's assessment. I can thus gratefully testify that the entire dispute between SARS and myself has been resolved, and SARS's claim has been settled in full. In this regard I point out that I had always, in the discussions with SARS, indicated my acceptance of any duly estimated amount of income tax. I point out that the amount assessed did not invoke any tax amnesty such as had been extended in the past to thousands of South Africans.

148.

I have little doubt that the NPA has, throughout, been aware of the discussions between my representatives and the representatives of SARS. I refer to Section 73 of the Prevention of Organised Crime Act No. 121 of 1998. The NPA has indeed been prying into my every financial affair for the past 7 years at least and indeed resorted to spying on me using intelligence gathering methods not authorised by any competent body. The absence of any consultation and the absence of seeking any representations from me (and my legal representatives) and SARS evident from the history of the litigation between myself and the NPA, come as no surprise.

149.

The negotiations and settlement concluded between SARS and myself in terms of Section 88E of the Income Tax Act has been recorded in writing. The terms thereof are clearly confidential. I annex, however, a letter from Mr Hulley's office ("O1") and the reply from SARS ("02") which confirms receipt of the payment of the amount assessed and the existence and basic outline of the agreement. The settlement was reached without any admission of criminal conduct on my part and on the basis that it disposes of and resolves all liability in respect of the said tax issues - both criminal and civil liability. There is with respect, no issue of criminal liability in this regard, left.

150.

If the NDPP had at any time called for representations before the December 2007 decision, he would no doubt have been apprised both by myself and SARS that the negotiations had been ongoing for a number of years and that they were in an advanced state of reaching settlement. For reasons which I submit are obvious, the NPA simply deliberately refused to hear such representations.

151.

The aforesaid simply demonstrates fully that, not only due to the ancillary nature of the charges relating to income tax offences, but also as a result of the special place of income tax offences in South African law, it was indeed very necessary for the NDPP to call for representations prior to instituting a prosecution on such counts in December 2007. Once again, the NPA's conduct displayed an intentional disregard for its Constitutional obligation when it comes to ensuring the conviction of Zuma on any criminal charge.

152.

I return to the NDPP's decision of December 2007 and the December 2007 indictment. I shall again confine myself to the failure to call for representations.

153.

I do not comment on the timing and the reasons for the decision by the acting NDPP in December 2007 to prosecute me. This will be addressed in a permanent stay application if required.

154.

The only reasonable inference to be drawn is one of a grim resolve, irrespective the facts and circumstances, to prosecute me and so prevent my Presidency since the earlier strategy to denounce me in public as a crook did not have this desired effect. This will be addressed in another application if needs be.

155.

What is relevant here, is the very deliberate negation of the Constitutional and statutory obligation to seek and consider such representations as are provided. This is clearly deserving of an adverse cost order on the attorney and client scale.

156.

It is perfectly clear from Pikoli's affidavit that he, if he did so at all, only considered issues of guilt or innocence in reversing the earlier decision of Ngcuka to prosecute me and he did so in the light of the judgment of Squires J in S v Schabir Shaik. He did so without calling for any explanations from me or any representations from me. This displays a flagrant disregard for the Constitutional obligations of the NDPP and the NPA and my Constitutional right that the decision is not to be reviewed and certainly not changed without representations from me being called for.

157.

This flagrant disregard for the constitutional dispensation likewise permeates the decision of Mpshe to charge me in December 2007. In this instance my clear and direct request to be allowed to make representations, which was my constitutional right and his duty to call for it, were deliberately ignored. There is no conceivable explanation for this, save that there was a grim determination to prosecute me at all costs, even at the cost of the State's Constitutional duties, in order to eliminate me as a political leader.

158.

Should for any reason my contention that the NPA was bound to comply with the provisions of Section 179(5) by informing me of any pending review and possible decision to prosecute me despite the August 2003 decision not to do so, and inviting me to make representations in this regard, it will be contended on my behalf that I had a legitimate expectation to be so informed and that any representations made by myself in response, would be duly and carefully considered before any decision to prosecute me would be taken. The Respondent clearly and deliberately frustrated that expectation and the charges and underlying decision likewise falls to be set aside.

159.

The issue of such a legitimate expectation of a hearing was succinctly raised by me and the existence thereof denied by the Respondent in the permanent stay proceedings before Msimang J. I have already referred thereto. The dispute obviously went no further than to be raised on the papers given the striking off of the trial matter.

160.

It is thus, in the alternative, my contention that in the particular circumstances governing the decision to prosecute me which is manifested by the 28 December 2007 indictment, I had a legitimate expectation to be afforded an opportunity to make representations prior to the finalisation of the decision to prosecute or not. I base this contention on the facts and circumstances set out hereinbefore (some of which I summarise hereafter) as well as the additional considerations set out below.

161.

(a) I have set out above how extremely well investigated, how thoroughly and carefully considered, and how important the decision not to prosecute me was and how vast the publicity given to the decision. Clearly one would as a matter of common sense and consistency expect the same approach to a possible reversal of a decision of such quality and import.

(b) The sentiments in paragraph 33 of Mr Ngcuka's 23 August 2003 media statement indicate some finality to the process and that I can rely on that.

(c) I had been informed that my response to certain questions from the NPA was necessary in order to arrive at the 2003 decision. My legal representatives identified the questions which they deemed relevant to the investigation as it then stood. One would have expected a similar approach in respect of any "new" evidence.

(d) In the warrant application the NPA proclaimed that part of the motivation for the pervasiveness of the search and seizure operations was a desire to unearth exculpatory evidence so as to consider whether the charges should not be abandoned against me. By parity of reasoning one would have expected a desire to hear from the horse's mouth about such aspects once the decision to prosecute was to be reconsidered.

(e) Both the Prosecution Policy document and the Guidelines for Prosecutors issued in terms of the NPAA call for responsible and careful decision making when dealing with the issue whether to prosecute or not in any given instance. I have annexed a copy of the Guidelines hereto marked "P". It is difficult to perceive how this aim could have been met without a call for representations.

(f) It is also pointed out that the NPA during 2007 reviewed various cases including that of Commissioner J. Selebi. I annex hereto newspaper reports reflecting this. I mark these "Q". This followed Mr Pikoli's suspension as NDPP and Mr Mpshe's appointment as acting NDPP. Mr Mpshe as a result inter alia applied to set aside certain warrants directed at Mr Selebi. My case was one of those reported to be under review. It would be odd and constitute unequal and discriminatory treatment if my case were not reviewed and no representations were called for.

(g) It is further pointed out that my legal representatives expressly and clearly sought an opportunity to make representations as to whether a decision to prosecute me should be taken, prior to such a decision being taken. There was absolutely no reason why I should not have been afforded such an opportunity unless the NPA and especially the office of the NDPP wished to avoid being confronted by representations which were either unanswerable or which put the NDPP and especially the Directorate of Special Operations (the Scorpions) in a bad light. It is further pointed out that the enigmatic (to say the least) letter received in answer from the NDPP, did not state that representations would not be sought, but simply conveyed (if anything) that the time was not yet ripe.

(h) Msimang J's judgment as to the effect and unfairness of bringing charges against me in an ill-considered manner as to the time of institution and the obvious relevance of such considerations on the decision to prosecute itself, called for an opportunity to make representations to be granted.

(i) The obvious rationale of Section 179(5) and the Constitutional injunction in Section 39 to give full effect to the values that underlie an open and democratic society and to promote the spirit, purport and objects of the Bill of Rights, apply fully to the decision(s) to prosecute me despite the August 2003 decision. This is in line with common law dictates of fairness and audi alterem partem, and full legal argument will be addressed on these issues.

(j) The decision(s) to prosecute me clearly had enormous public interest ramifications. It was clear that since 2003 I was mooted in the public eye as a very real candidate for the ANC Presidency and the Presidency of the RSA. I had always made it clear that I was willing to serve in whatever position the ANC sought me to serve in.

162.

Given my position as Deputy President of the ANC and the RSA and past experience as to the elevation of such incumbent to the respective presidencies as well as my personal history and struggle background, such an outcome to the ANC processes was a very real possibility. The December 2007 decision to charge me was implemented just after my election in December 2007 which was accompanied by a general public opinion that I would be the next president of the RSA. That of course is still a decision for the ANC to make - it is up to the ANC whether that will happen or not. Notwithstanding this, the general public interest aspect of the decision was clear.

163.

Moreover, allegations of a political plot to ensure via my prosecution that I am disqualified from appointment as President of the ANC or the Republic of South Africa, or at least seriously hampered as a candidate for both presidencies, were made and advanced from June 2005 and before. In the litigation between myself and the NPA which has already occurred, I myself have contended that my prosecution was driven and maintained by political motives. Similar sentiments have been raised in numerous press articles. The relevance of this aspect does not for present purposes lie in the truth or correctness thereof now, but in the simple existence thereof.

164.

Even if the concept of a legitimate expectation does not fit the mould for the conclusion that the decision to prosecute me was unlawful, such conclusion for purposes of Section 33 of the Constitution remains sound based on the facts and circumstances relied upon hereinbefore. The relief sought in the notice of motion is then still the appropriate relief given this basis. It was not lawful to make the decision to prosecute me again without giving me a hearing on whether the decision should be to prosecute or not prosecute me.

165.

I accordingly ask that the relief sought in the Notice of Motion pre-fixed hereto be granted, with costs, including that of three Counsel.

_____________________________

 JACOB GEDLEYIHLEKISA ZUMA

 

I HEREBY CERTIFY that the deponent has acknowledged that he/she knows and understands the contents of this affidavit which was signed and sworn to before me at ______ on this the ________ day of _______2008, the provisions of the Regulations contained in Government Gazette Notice R35 dated 14 March 1980 having been duly complied with.

_________________________

COMMISSIONER OF OATHS

Source: Friends of Jacob Zuma website