R 170954Z FEB 09
FM AMCONSUL CAPE TOWN
TO SECSTATE WASHDC 2960
INFO SOUTHERN AF DEVELOPMENT COLLECTIVE

UNCLAS CAPE TOWN 000034 
 
 
E.O. 12958: N/A 
TAGS: SF PGOV
SUBJECT: LEGAL EXPERTS AGREE ZUMA CASE UNLIKELY TO BE 
RESOLVED SOON 
 
¶1. (SBU) Summary: Two prominent legal experts -- one a harsh 
critic of Jacob Zuma and one a strident defender -- agree 
that Zuma's legal travails are unlikely to be resolved in the 
next year, and National Prosecuting Authority (NPA) 
mishandling of the case is to blame for the government's 
inability to go forward with a case against Zuma.  While they 
further agree that the government's appointment of a 
compliant NPA head would be the easiest way to see charges 
against Zuma dropped, they differ over the ease at which 
either President Motlanthe -- or Zuma after elections this 
year -- could make such a move.  The two also differ over the 
merits of Zuma's application for a permanent stay of 
prosecution, which will be filed in the Pietermaritzburg High 
Court in June.  Ultimately, comments by both suggest that the 
cloud hanging over Zuma's head is highly unlikely to 
disappear for quite some time after he probably assumes the 
national Presidency after the election in April.  End summary. 
 
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CONSTITUTIONAL SCHOLAR PESSIMISTIC ON QUICK RESOLUTION 
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¶2. (SBU) Pierre de Vos, a professor of constitutional law at 
the University of Western Cape and prominent commentator on 
legal issues, told Pol/Econoff and visiting Pretoria Poloff 
on February 9 that Jacob Zuma's case has little chance of 
resolution in the next 18 months.  De Vos noted that the 
August 25 date on which his trial is supposed to start is 
irrelevant; the date that matters is June 24, when Zuma and 
the French armaments firm Thint will make a joint application 
for a permament stay of prosecution in the Pietermaritzburg 
High Court.  De Vos said Zuma's lawyers appear likely to seek 
this stay on the grounds that the long period of time it has 
taken the NPA to bring charges against him -- starting with 
former NPA head Bulelani Ngcuka's 2003 declaration that a 
prima facie case existed against Zuma -- has unfairly 
prejudiced the courts against Zuma and prevents him from 
getting a fair trial.  De Vos notes that Ngcuka, probably at 
the behest of former President Thabo Mbeki, probably made 
that statement in an effort to scare Zuma into backing down 
from his presidential aspirations.  Rather, the statement 
backfired spectacularly, leading many disaffected ANC cadres 
to support Zuma on the grounds that he was being unfairly 
persecuted by Mbeki. 
 
¶3. (SBU) De Vos said he was not sure whether such an approach 
would work, though legal statutes suggest such an approach 
has some merit.  However, he notes that Judge Leona Theron 
will have to weigh such claims against equally compelling 
arguments that it is in the public interest for Zuma to 
answer the charges against him.  (Note: Although de Vos spoke 
highly of Theron and respects her integrity, he also noted 
that she is considered a front runner for a seat on the 
Constitutional Court, which has four vacancies this year.  As 
these positions are appointed by the President, he said that 
her judging this case creates a potential conflict of 
interest.  End note.)  Ultimately, de Vos said that no matter 
how Theron rules, the losing side will likely appeal the 
verdict, and de Vos said he saw little likelihood of the case 
being resolved in legal channels in the next 18 months.  He 
doubts the August 25 trial date will actually occur. 
 
¶4. (SBU) A political resolution to Zuma's troubles looks to 
be the easiest way out for Zuma, but de Vos notes that such 
moves carry risks as well.  De Vos doubts that the ANC has 
the gumption to go as far as to change the Constitution to 
protect Zuma, such as inserting a clause that would prevent 
Qprotect Zuma, such as inserting a clause that would prevent 
the prosecution of a sitting President.  It would cause too 
much of a public outcry, damage South Africa's international 
reputation, and may not even be possible if the ANC does not 
get two-thirds of the vote in this year's election.  The 
National Assembly could pass a piece of legislation to 
protect Zuma, but de Vos doubts the Constitutional Court -- 
which has been clear in supporting the principle that all are 
equal under the law -- would uphold such legislation. 
 
¶5. (SBU) The simplest, and most likely, attempt at a 
political resolution is likely to be the appointment by 
President Motlanthe -- or President Zuma assuming he is 
elected after this year's election -- of a new, compliant 
head of the NPA who would simply dismiss charges against 
Zuma.  Many ANC loyalists -- like former Limpopo Premier 
Ngoako Ramatlhodi -- are rumored to be considered for such a 
position.  De Vos noted such a move also would cause 
widespread outrage, and he also commented that it might not 
be legally possible at the moment since dismissed NPA head 
Vusi Pikoli plans to appeal his dismissal to the Johannesburg 
High Court and, if need be, ultimately to the Constitutional 
Court.  The results of these appeals probably will not be 
known for four or five months, and it is legally unclear 
whether a President can appoint a permanent head in the 
meantime. 
 
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ZUMA LEGAL ADVISER CONFIDENT OF SUCCESS 
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¶6. (SBU) Paul Ngobeni, the deputy legal registrar at the 
University of Cape Town and a prominent public defender of 
Zuma, echoed similar points to Poloff and Pol/Econoff later 
that same afternoon.  (Note: Ngobeni, who practiced law in 
Connecticut until mid-2007, as of mid-2008 was facing five 
counts of larceny, fraud, and illegal practice by that 
state's authorities in connection to non-delivery of services 
and practicing under suspension.  He has publicly proclaimed 
his innocence and has said that the charges were likely to be 
dismissed.  He made no mention of these legal troubles in the 
meeting.  End note.) 
 
¶7. (SBU) Ngobeni hit strongly on the point that the time it 
has taken to bring Zuma to trial has unfairly prejudiced 
potential judges against him, a point he emphasized in a 
lengthy tour d'horizon of the case.  Like de Vos, he noted 
that Ngcuka's declaration of a prima facie case against Zuma 
was a tremendous mistake by the NPA.  If they thought they 
had a case then, they should have prosecuted.  If they had 
such a case then, Ngobeni asked, why did they wait until 
after the 2005 conviction of Zuma financial adviser Schabir 
Shaik to file charges against Zuma?  All of it, Ngobeni said, 
reeks of political conspiracy against Zuma. 
 
¶8. (SBU) As for the way forward for Zuma, Ngobeni said that 
Zuma and the ANC are taking a two track approach by appealing 
the Supreme Court of Appeals January verdict that charges 
against Zuma can proceed as well as seeking the permanent 
stay of prosecution.  (Note:  Ngobeni admitted that the ANC's 
decision to join the Zuma case as "a friend of the accused" 
was unlikely to either help or hinder Zuma's legal standing. 
He said the move was smart politically, but has no 
fundamental basis for the case.  End Note.)  Key to both of 
these cases are going to be appeals based on sections 34 and 
38 of the Constitution, which guarantee, respectively, the 
right to a fair trial and the right of relief from 
prosecution should an individual's civil rights be violated 
before he or she can be brought to trial.  Ngobeni thinks 
such arguments are strong ones, though he noted that he 
advised the ANC that they should have taken such an approach 
more than a year ago.  However, he said political 
considerations kept the party from doing so at the time. 
 
¶9. (SBU) Ngobeni said he was not sure about chances of 
success in the Constitutional Court, but he claimed that 
there was a "90 percent" chance of success in getting a 
permanent stay of prosecution, as he thinks arguments that 
Zuma cannot get a fair trial are too strong to ignore. 
Ngobeni said that if neither of these appeals are successful, 
the ANC will consider solving the matter through political 
means by appointing an NPA head who will dismiss the case. 
While the ANC wants to resolve Zuma's problems through 
"legal" means, Ngobeni thinks such a solution might be the 
ultimate resolution of the case.  Asked whether Pikoli's 
appeal could complicate this, Ngobeni responded in the 
negative, noting that even if the Constitutional Court finds 
Pikoli was wrongly dismissed, it could not reappoint him 
since the NPA head is a political appointment named by the 
President. 
 
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COMMENT 
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¶10. (SBU) Both de Vos and Ngobeni made it clear that the 
legal arguments likely to be made around whether Zuma's trial 
goes forward have nothing to do with Zuma's guilt or 
innocence.  De Vos said that Zuma would be in "deep trouble" 
if his case ever went to court, while even Zuma-backer 
Ngobeni said that does not know if Zuma is guilty or not. 
QNgobeni said that does not know if Zuma is guilty or not. 
Rather, arguments in the coming months will focus more on 
whether Zuma's civil rights were violated, and if they were, 
whether a dismissal of the case would be in the public good. 
It is difficult to say how the courts will rule, but it does 
appear likely that the appeals process will go on long after 
Zuma likely becomes President of South Africa.  That is, of 
course, if the ANC government continues to let the courts 
take on the case -- the dropping of charges by a compliant 
new head of the NPA is a very real possibility, and one that 
has worrying implications for South Africa's commitment to 
upholding the rule of law. 
 
 
MAYBERRY