Zuma should have gone to trial, says Hong Kong judge

On the eve of Jacob Zuma’s inauguration as South African President, the judge whose decision was key to dropping corruption charges against the ANC president has said that the country’s chief prosecutor made a mistake in law.

Acting head of the National Prosecuting Authority Mokotedi Mpshe (pic left) last month controversially dropped a corruption prosecution against Zuma, saying the investigation had been tainted by an apparent conspiracy by former Scorpions head Leonard McCarthy and ex-NPA head Bulelani Ngcuka. He used a case in Hong Kong as one of this key reasons for dropping the charges.

But the former Hong Kong judge behind that important decision, Justice Conrad Seagroatt, who earlier commented to Grubstreet on Mpshe’s plagiarism of his judgment, has now told me that Mpshe was wrong to use his judgment to justify dropping the charges against Zuma, due to be inaugurated as president of South Africa at the Union Buildings in Pretoria tomorrow.

He said, echoing the sentiments of other top SA prosecutors and widely reported in the local press, that he should have allowed the case to go to trial.

"It is very strongly arguable that he should have let the trial process begin
before a judge, leaving the aspect which seems to have dominated his proper role
as the prosecutor (the old adage being a ‘prosecutors’ job is to prosecute) to
be determined by the judge with [Mpshe] being entirely candid (as he should be)
as to the conduct of the investigative and prosecuting agencies. It is easy from
my position in the U.K. (or Hong Kong) to be critical of Mpshe’s statement but
being as objective as I can, he really did not get to grips with the situation
and seems to have made selective use of my judgement to try and put some beef
into a statement which is rather short on substance."

Jacob Zuma


Shortly before South Africa’s general election last month, Mpshe sensationally revealed secretly recorded intelligence telephone intercepts which suggested that Ngcuka and McCarthy and other prominent political figures had been part of conspiracy to derail Zuma’s political ambitions by carefully timing key events in the process of the prosecution.

But at the heart of Mpshe’s decision, in a lengthy statement read to South Africa on live television, was a 2002 judgment by Seagroatt in 2002 that he said justified his decision to drop charges. Seagroatt’s decision was not acknowledged by the Mpshe – the apparent plagiarism was revealed by James Myburgh of Politicsweb – and he faced accusations of plagiarism, which were brushed aside by his spokesman.

Further, Seagroatt told Grubstreet, his decision was later over-ruled by the Hong Kong Court of Final Appeal and that Mpshe should have explained why he had relied on Seagroatt’s original decision rather than the comments by the Appeal Court. But the now-retired judge after reading Mpshe’s statement and after earlier criticising Mpshe for his lack of professionalism in his lack of citation has now gone further, telling Grubstreet exclusively that Mpshe’s was wrong to rely on his original decision at all.“There was certainly room for him to do so”.

"What Mpshe seems to have taken as the justification for
his decision was not a material aspect of the trial procedure but a decision
made by some branch of the investigative process as to when and where Jacob Zuma
should be charged on the basis of political considerations. That is an entirely
different scenario. Many might argue that motivation in relation to timing of a
charge is very different from manipulation of the evidence available. His own
statement is so limited and sketchy that I find it impossible to identify why he
was relying on my judgement. In the Hong Kong case the behaviour of the
prosecution which I criticised was its failure to disclose material evidence in
relation to an expert witness upon whom it relied as pivotal to its case. The
first “whiff” of such evidence did not emerge until the jury were considering
their verdicts and I had to stop the trial at that stage - a very rare
event."

NPA spokesman Tlali Tlali said the NPA did not wish to comment on the matter as it is going to the high court. The Democratic Alliance filed papers last month with the North Gauteng High Court for a judicial review of the decision by the NPA to withdraw all charges against Jacob Zuma. Read the court papers here.

The Story So Far

“Was Mpshe’s Zuma decision plagiarised? The Hong Kong judge thinks so!” (Grubstreet)
The James Myburgh piece that started all the trouble (Politicsweb)
“Double Standard or respect for the rule of law?” (ConstitutionallySpeaking blog)
“NPA defends Mpshe” (IOL)
“NPA boss plagiarised judge in Zuma ruling”
The Democratic Alliance’s papers filed with the North Gauteng HighCourt for a judicial review of the decision by the NPA to withdraw allcharges against Jacob Zuma
“Mpshe: Zuma decision not an acquittal”
The full statement by Mokotedi Mpshe
“Shaik, Thint and the 16 charges” (The Times)
“Zuma charges: Mpshe to meet Surty” (IOL)
“Fact: Zuma has a case to answer” (Constitutionally Speaking)
“Why would the tapes save Zuma?” (Michael Trapido on Thought Leader)

See also:- Zuma and the French connection