The Democratic Alliance has doggedly dragged the case through the courts. Picture: SUNDAY TIMES
COURT DATES: The ‘spy tapes’ and ‘pay back the money’ matters, in which president Zuma is embroiled, come up in the new year. Picture: SUNDAY TIMES

THE Democratic Alliance’s (DA’s) nearly six-year legal fight challenging the dropping of corruption charges against President Jacob Zuma is finally going to be heard.

The DA wants the high court to set aside the 2009 decision to discontinue Mr Zuma’s prosecution, on the grounds it was irrational in law and unconstitutional. The case is scheduled to be heard from Tuesday to Thursday in Pretoria.

When former acting national director of public prosecutions Mokotedi Mpshe announced the decision, he read out excerpts from what later became known as the "spy tapes", which comprised intercepted phone conversations between former National Prosecuting Authority (NPA) head Bulelani Ngcuka and erstwhile Scorpions boss Leonard McCarthy.

The tapes seemed to show that Mr Ngcuka and Mr McCarthy had colluded on the timing of the indictment of Mr Zuma to influence the outcome of the African National Congress’s (ANC’s) 2007 elective conference in Polokwane.

Mr Mpshe said the abuse of the legal process was a "gross neglect of the elementary principles of fairness" and it would be "unconscionable" for a trial to continue.

But the DA will argue that Mr Mpshe’s decision bears no rational connection to his reasons because nothing in the tapes affected the quality of the case against Mr Zuma.

The tapes did not change the fact that there was a prima facie case to answer, said the DA in its court papers.

The DA has doggedly dragged the case through the courts, having to go to the Supreme Court of Appeal twice. As court papers trickled in, startling claims were made about political interference in the NPA escalating in the run-up to the watershed Polokwane conference.

Deputy National Director of Public Prosecutions Willie Hofmeyr said Mr Ngcuka and "his proxy", Mr McCarthy, had seen nothing wrong with helping former president Thabo Mbeki fight his political battles.

The prosecution authority’s case is directed at showing that the prosecution had an "ulterior purpose", something that the Supreme Court of Appeal has previously held to be a breach of the rule of law.

However, the appeal court has said that if there is a case to answer, an improper motive would not make a prosecution wrongful.

"It will only be wrongful if, in addition, reasonable and probable grounds for prosecuting are absent," said Justice Louis Harms in 2009.

The NPA will have to prove the political manipulation was about the timing of the indictment and not the decision to prosecute — arguably two distinct legal acts.

Mr Zuma’s legal adviser, Michael Hulley, claimed that the political meddling in the case was so severe that the good could not be separated from the bad.

But when Mr Mpshe explained his decision to drop the charges, he said there was no question that Mr Zuma would not have a fair trial, indicating there was indeed a way to separate good from bad.