COURT HEARS STATE'S APPEAL OF ZUMA DECISION, WILL

C O N F I D E N T I A L SECTION 01 OF 02 PRETORIA 002605

SIPDIS

AF/S PLEASE PASS TO A/S FRAZER

E.O. 12958: DECL: 11/28/2018
TAGS: KJUS PGOV KDEM SF
SUBJECT: COURT HEARS STATE'S APPEAL OF ZUMA DECISION, WILL
RULE NEXT YEAR

REF: A. PRETORIA 2097

B. PRETORIA 2125

C. PRETORIA 2223

D. PRETORIA 2497

E. PRETORIA 2576

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Classified By: Political Counselor Raymond L. Brown for Reasons 1.4 (B)
and (D).

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Summary
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1. (U) The Supreme Court of Appeal on November 28 reserved
judgment until January 12 in the National Prosecuting
Authority's (NPA) appeal against a high court ruling that
halted the prosecution of African National Congress (ANC)
President Jacob Zuma. The atmosphere outside the court was
reportedly subdued compared with the atmosphere outside the
Pietermaritzburg High Court in September. Both legal teams
made their arguments and former President Thabo Mbeki, whose
request for appeal was denied by the Constitutional Court on
a technical point because the Supreme Court of Appeal was
prepared to hear the state's appeal, sought to convince the
Court that he should be party to the NPA's appeal since he
was named in the Nicholson verdict. The five-member Supreme
Court of Appeal will need to reach a consensus before making
a decision and has said they will issue a notice if they need
to delay the ruling. End Summary.

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The Atmosphere and the Arguments
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2. (U) There was far less build up for this court date than
for the case heard by the Pietermaritzburg High Court in
September. Few of Zuma's most strident supporters such as
ANC Youth League President Julius Malema made statements
threatening the judicial system while Zuma himself largely
focused on the ANC's campaign for the election next year.
The "Mail and Guardian" reported that roughly 3,000 ANC
supporters were expected to protest outside the Supreme Court
of Appeal in Bloemfontein, but there was no verification of
how many protesters were there and some press reports
suggested there were only 1,000 supporters. By most
accounts, there were few disruptions from Zuma's supporters
or scuffles between his allies and security personnel. Zuma
was surrounded by numerous bodyguards while police and
security officials surrounded the court house's main entrance
and restricted journalists' access to ensure protection for
those inside the court room.


3. (U) The state's appeal largely rests on three points.
First, the state argued that Nicholson was "wrong" to imply
that there was political interference by the state in the
December 2007 decision to refile charges against Zuma.
Second, the state asserted that Nicholson's interpretation of
an accused person's constitutional right to make
representations to the NPA was "flawed." Third, the state
argued against Nicholson's implication that Zuma was the
victim of a political conspiracy. Zuma's team countered
these points by arguing that Nicholson's interpretation was
sound and that Nicholson's comments on Mbeki were "his
opinion and not the crux of the appeal."

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What Comes Next
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4. (C) Senior legal counselor and potential High Court
judicial nominee Billy Mothle told Poloff on November 26 that
three of the five justices on the Supreme Court of Appeal
would have to agree on a judgment. (Note: Mothle in the
past has told Poloff that the Nicholson decision was not
sound legally and that the government had to appeal it. For
more information see Reftel A. End Note). The Supreme Court
Qmore information see Reftel A. End Note). The Supreme Court
of Appeal's decision on this case will have numerous
implications for all involved. For the NPA, if the Court
upholds the Nicholson verdict, it would be a blow to the
state's argument that state institutions are not influenced
by intra-party political wrangling. A decision in favor of
the state, however, would pave the way for the NPA to
recharge Zuma with corruption immediately. For Zuma, a

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ruling by the Court to uphold the Nicholson verdict would
make him nearly unstoppable in his quest for the national
presidency. Yet, a decision in favor of the state would
further damage of the ANC President's image, disrupt the
ANC's election campaign, and set the scene for more bickering
between the ruling party and the judiciary. For Mbeki, if
the Court strikes down Nicholson's comments about the former
President's alleged interference in Zuma's prosecution it
would vindicate the former leader and his backers in the
ruling tripartite alliance. However, if the Court concurs
with the Nicholson verdict it would hugely embarrass Mbeki,
who has always portrayed himself as a victim of precipitous
action and a strict constitutionalist.

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Comment
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5. (C) There are few signs of how the Supreme Court of
Appeal ultimately will rule. However, the Court's decision,
whenever it comes, will carry significant legal and political
impacts for all involved. With the judgment pushed to
January 12, the ANC may push forward on plans to hold the
national election in the first quarter of 2009 to ensure that
Zuma is in position to take the presidency while the legal
process drags out. This means the March 25 election date
being recommended by the ANC leadership may be increasingly
likely. (For more information on the election date
discussion see Reftel E. End Note).
LALIME