VZCZCXRO5760
RR RUEHBZ RUEHJO RUEHMR RUEHRN
DE RUEHDU #0006/01 0131528
ZNR UUUUU ZZH
R 131528Z JAN 09
FM AMCONSUL DURBAN
TO RUEHC/SECSTATE WASHDC 1379
INFO RUCNSAD/SADC COLLECTIVE
RHEHAAA/NSC WASHINGTON DC
RHEFDIA/DIA WASHINGTON DC
RUEAIIA/CIA WASHDC
RUEHDU/AMCONSUL DURBAN 0752

UNCLAS SECTION 01 OF 02 DURBAN 000006 
 
SENSITIVE 
SIPDIS 
 
FOR AF/S, INR 
 
E.O. 12958: N/A 
TAGS: PGOV ZA
SUBJECT: ZUMA, STATE PONDER NEXT STEPS AFTER COURT RULING 
 
REF: PRETORIA 47 
 
DURBAN 00000006  001.2 OF 002 
 
 
¶1. (U)  Summary: The Supreme Court of Appeal on January 12 
reinstated the corruption case against African National Congress 
(ANC) President Jacob Zuma,  overturning an earlier verdict that 
had tossed out the charges related to the controversial 1998 
arms deal on a technicality.  (Note:  The state charged Zuma 
with corruption, money laundering, racketeering, and fraud 
shortly after he won the ANC presidency in December 2007.  End 
Note.) Pietermaritzburg High Court Judge Chris Nicholson ruled 
in September 2008 that the state's case against Zuma was invalid 
because the National Prosecuting Authority (NPA) did not allow 
Zuma to make representation before indicting him.  The decision 
also noted allegations of a political conspiracy against Zuma 
"could not be ruled out," and ultimately led to the forced 
recall of former President Thabo Mbeki.  The Supreme Court of 
Appeal, in reinstating the case, offered  a scathing rebuttal of 
the Nicholson ruling and declared the NPA did not have a legal 
obligation to give Zuma representation.  Zuma and the ANC are 
exploring a number of legal options that would keep him in 
position to win the presidency in the election, while most 
pundits and political analysts say this legal drama is far from 
over.  End Summary. 
 
 
The Ruling:  Supreme Court of Appeal Weighs In 
 
¶2. (U)  The Supreme Court of Appeal, in overturning Nicholson's 
verdict on January 12, pointed to a number of errors in the 
lower court's ruling.  The Court declared Nicholson's 
allegations of a political conspiracy as "erroneous," 
"unwarranted," and "incomprehensible."  Supreme Court of Appeal 
Judge Louis Harms said Nicholson overstepped the limits of his 
duty as a judge.  He said, "[Nicholson's findings] were part of 
his own conspiracy theory and not one advanced by Mr. Zuma." 
Harms wrote, "[Nicholson] changed the rules of the game, took 
his eyes off the ball, and red-carded not only players but also 
spectators."  Harms also upheld the role of the NPA in 
prosecutions, noting that "an Attorney General (or NDPP) is 
required by convention to make prosecutorial decisions without 
regard to political considerations and may not subject his 
discretionary authority to that of government. He or she is also 
not responsible to government to justify the exercise of his or 
her discretion because this political office has judicial 
attributes." 
 
What Happens Next:  Zuma's Legal Team Pushes Back 
 
¶3. (U)  Zuma's legal team has at least five options.  First, it 
can refer the Supreme Court of Appeal decision to the 
Constitutional Court.  Second, the team could request a stay of 
prosecution, where the NPA would halt proceedings against the 
ANC leader after consultation.  Third, it could take its chances 
and go to court.  (Note:  Pundits argue that Zuma says "he has 
not had his day in court" while noting that he has done 
everything to avoid a corruption case going through the justice 
system.  End Note.)  Fourth, the team could seek to delay so the 
ANC wins the election and Parliament amends the Constitution to 
prevent the prosecution of a sitting president until he leaves 
office.  Fifth, it could cut a deal with the NPA. 
 
¶4. (U)  Each of the options would take time away from Zuma and 
the ANC's efforts to win and consolidate power.  Appealing to 
the Constitutional Court, going to court, and delaying until 
after the election would be the options that take the most time 
because of the legal work involved.  The legal team appears to 
be pursuing all options, but so far has only made representation 
to the NPA now that the charges stand.  Zuma's attorney told 
reporters on January 12 the team would examine whether appealing 
to the Constitutional Court is possible and during the past week 
the press reported rumors of Zuma's team seeking a deal with the 
NPA. 
 
What Happens Next:  The State's Case Stands 
 
¶5. (U)  The state has made clear that its charges against Zuma 
stand.  The NPA, which has now been vindicated, must decide in 
the short term whether to work with Zuma's legal team to have 
Nicholson recused from presiding over any eventual  trial of 
Zuma.  Over the longer term, the NPA must weigh whether to 
strike a deal with Zuma's defense team or counter charges in 
court or an appeal in the Constitutional Court.  The NPA in many 
ways is in a reactionary position even as its charges stand. 
NPA spokesperson Tlali Tlali on January 12 welcomed the ruling 
and indicated that the NPA is now ready to proceed with the 
prosecution of Zuma.  However, he acknowledged the NPA is aware 
that other legal avenues are still available to Zuma. 
 
 
DURBAN 00000006  002.2 OF 002 
 
 
What Happens Next:  Commentators Offer Insight 
 
¶6. (U)  Political analysts and legal pundits offered a variety 
of views on the Supreme Court of Appeal's judgment, most sharing 
the assessment the legal drama surrounding the ANC leader is far 
from over.  Constitutional law expert Pierre de Vos said, "The 
judgment ~ deals a blow to Mr Zuma's potential legal arguments 
about a permanent stay of prosecution as it makes clear that a 
'prosecution is not wrongful merely because it is brought for an 
improper purpose.' It will only be wrongful if, in addition, 
reasonable and probable grounds for prosecuting are absent, 
something not alleged by Mr Zuma and which in any event can only 
be determined once criminal proceedings have been concluded." 
Center for Policy Studies political analyst Ebrahim Fakir said, 
"The appeal decision means we are back at square one.  We must 
brace for another round of legal battle, which will probably end 
in the Constitutional Court."  Law expert Shadrack Gutto noted 
that the easiest solution for Zuma, and for the country, would 
be for his legal team to strike a deal with prosecutors. 
However, he said that such a move would be politically risky. 
He said, "This might be seen as conceding guilt, and he will be 
required to make some serious disclosures."  Gutto said this 
saga is long from over and will "hang over Zuma's head." 
 
Comment 
 
¶7. (SBU)  The Supreme Court of Appeal's ruling against the 
Nicholson verdict was largely expected by legal experts and the 
ruling party.  (Note:  Housing Minister Lindiwe Sisulu told 
Poloff in East London on January 10 the ANC would not travel to 
Bloemfontein to hear the decision because the party expected the 
outcome to be unfavorable.  End Note.)  Zuma and the state have 
a number of legal options available to them, but weighing those 
options and putting a plan in place will take time and 
resources.   More than anything, this ruling vindicates 
supporters of Thabo Mbeki who will argue that the ANC erred in 
recalling him from the presidency; South Africa watchers are 
awaiting his reaction. However, this judgment will not change 
the ANC's decision of nominating Zuma for president, nor will it 
revisit the recalling of Mbeki.  The Congress of South African 
Trade Unions and the South African Communist Party have declared 
their continued support for Zuma and so has the ANC Youth 
League. As far as  Zuma supporters are concerned it is business 
as usual.  The SCA judgment will not stop them from ensuring 
that Zuma ascends to the presidency after elections with or 
without corruption charges. 
 
¶8. (U) This message was drafted by Durban Pol-Econ Assistant in 
collaboration with visiting Pretoria PolOff. 
DERDERIAN