Democratic Alliance MP James Selfe. Picture: THE TIMES
Democratic Alliance MP James Selfe. Picture: THE TIMES

JAMES Selfe is the Democratic Alliance (DA) MP who has done most of the running since Helen Zille hand-delivered an urgent application for the review and setting aside of the prosecutorial decision to withdraw 783 charges of corruption, fraud, money laundering and racketeering against then private citizen Jacob Zuma in April 2009 to the North Gauteng High Court in the same month.

Much water has flowed beneath the political bridge since then. In May 2009, Zuma became president of South Africa, having been elected leader of the African National Congress (ANC) in Polokwane in December 2007. He plans to run for re-election in Mangaung next month.

The review litigation has been pursued doggedly, but without much urgency. The initial high court decision in the matter, dismissing the case, was successfully appealed by the DA in the Supreme Court of Appeal in March, and the prosecutors were then ordered to make the record on which the decision to withdraw charges was based available to the DA in its capacity as applicant in the review, preparatory to the airing of the review in the North Gauteng High Court.

Although respect for the order of the Supreme Court of Appeal would normally dictate that the record be handed over in April, no such handing over has taken place, largely because Zuma objects, on the grounds of supposed confidentiality, to the disclosure of certain secretly made tape recordings of conversations between prosecutors past and present, on which the decision of then acting national director of public prosecutions Mokotedi Mpshe was based.

Selfe is quoted in the weekend press as saying that the DA is prepared to "go to the gates of hell" (via the Constitutional Court, if necessary) to get hold of the "spy tapes".

If the tapes were ever confidential, which is open to considerable doubt, their "confidentiality" has been forever compromised by the publication in the Sunday Times of a summary of 300 pages of leaked material, as well as extracts from the tape recordings upon which reliance was placed as a pretext for withdrawing charges against Zuma.

These have been dribbled into the public domain in recent weeks, presumably to boost newspaper circulation and the blood pressure of the nation in the run-up to next month’s ANC elective conference in Mangaung.

As has long been suspected, the tapes reveal an utterly irrelevant conversation between then Scorpions boss Leonard McCarthy and his former boss, Bulelani Ngcuka, regarding the timing of service of the summons on Zuma.

This was a conversation about which Mpshe knew nothing at the time that he decided (all on his own) to press the 783 charges by serving a summons on Zuma at the end of December 2007 and in Johannesburg rather than Nkandla. It beggars belief that Mpshe could ever have entertained the notion that the gossip on the tapes has or had any relevance in the matter.

The recently leaked documents show that the advice of legal heavyweights Wim Trengove and Andrew Breitenbach was sought in relation to the relevance of the content of the tapes.

They were unanimous in their agreement that this should not give Zuma a free pass.

To his credit, Mpshe did, when announcing the withdrawal of the prosecution, insist that the prosecution service remained convinced of its ability to secure a conviction on the merits of the charges so withdrawn.

The constitutionally guaranteed independence of the prosecution service was compromised by Mpshe’s decision to bow to the not inconsiderable political pressure being brought to bear on him.

His prospective accused was, at that time, the most popular politician in the ANC and its candidate for the presidency in the elections that were held in May 2009.

Threats of popular uprisings, damage to the economy and the undermining of the 2010 Soccer World Cup were used to persuade the hapless Mpshe to withdraw the charges. The fact that he was but an acting chief prosecutor also rendered him more vulnerable to political manipulation; it is the president who makes the appointment to this key post.

Mpshe never did rise to that rank; the honour was given to an even more malleable cadre, Menzi Simelane, in circumstances that did not stand up to constitutional scrutiny.

In a strange twist of fate, the litigation around Simelane’s appointment, which started after the review of the decision not to prosecute Zuma, has made its way through the courts faster than the review has done.

The upshot of this is that the country once again has an acting chief prosecutor at a critical juncture in relation to the future of the prosecution of Zuma on those 783 charges.

As it is likely, on a fair conspectus of the documents summarised in the weekend press reports and the material already filed on record, that the review will succeed, it will fall to the current leadership of the National Prosecuting Authority to deal with the considerable fallout of such a finding.

The idea of the reinstatement of the charges, and of a president who spends more time in the dock than in the Union Buildings, is a dismal prospect for all concerned.

Yet, if the notion of equality before the law enshrined in the bill of rights means anything, it is imperative for the reputation of the National Prosecuting Authority and for the proper administration of justice that the trial should proceed and that Zuma should have his day in court.

Due to the number of charges, the complexity of the case and the stalling tactics already very much in evidence, it is unlikely that the "day in court" will mean a trial any shorter than the marathon to which Zuma’s former financial adviser, Schabir Shaik, was subjected on his way to being convicted and sentenced to 15 years’ imprisonment.

If Zuma goes the full distance in the prosecution and is convicted, it is unlikely that his sentence will be any less than Shaik’s. If he is acquitted after a long trial, his credibility on the world stage will be akin to that of former Italian prime minister Silvio Berlusconi. This would not be a leadership phenomenon a developing country on the hunt for foreign direct investment can afford.

It is possible that the day in court will be no more than a day if a suitable plea bargain is struck. The trouble with a plea bargain is that it is likely to be one that puts an end to Zuma’s political career. It does not seem that the ANC is ready to relinquish its leader, despite the strong views among the professional prosecutors that they will be able to secure convictions in the case against Zuma. Why any political party would want a leader under so considerable a cloud is best explained by the party in question.

A plea bargain would also not fit in with the "Stalingrad strategy" which Zuma has hitherto adopted with so much success at slowing down the criminal case and the review proceedings in which he is involved, not as head of state, but as a potential accused in a serious corruption prosecution. The building of the bunker at Nkandla, a home improvement that no other president has seen fit to acquire, may be the last gambit in the "Stalingrad strategy" as the chickens inevitably come home to roost for Zuma, at his personal "gates of hell", as Selfe puts it.

• Hoffman SC is with the Institute for Accountability in Southern Africa.