LEGAL EXPERTS AGREE ZUMA CASE UNLIKELY TO BE

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.

-------------- --------------
CONSTITUTIONAL SCHOLAR PESSIMISTIC ON QUICK RESOLUTION
-------------- --------------


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.

--------------
ZUMA LEGAL ADVISER CONFIDENT OF SUCCESS
--------------


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.

--------------
COMMENT
--------------


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