Weekend insinuations that President Jacob Zuma may turn state witness against the controversial Gupta family under section 204 of the Criminal Procedure Act and subsequently gain immunity from prosecution have raised eyebrows in the legal fraternity.
According to Bedfordview attorney Tony Miguel, section 204 is used where the state requires a person who may have been a party to a crime to testify against others who have been charged with the same crime or other offences.
“The state’s justification for sacrificing a conviction against the witness is that without offering this indemnity it may not secure any convictions at all,” said Miguel on his Facebook page.
“Who cares about the Guptas? It would make sense to offer one or two of the Guptas 204 immunity to get the kingpin. The reason for section 204 was to enable the state to use the evidence of people lower in importance than the kingpin in order to secure the conviction,” said Wits associate law professor and practicing advocate Professor James Grant.
“It was introduced in order to allow plea bargaining; the whole point of it was so that we could save on a number of fronts such as going after irrelevant people and instead use the lure of the immunity to get them to turn on their bosses,” said Grant.
Without the evidence of the people lower down the chain, it would be almost impossible to convict the man at the top, Grant noted.
There was no rhyme or reason for Zuma to be given immunity under section 204 as he is the alleged kingpin, Grant said.
“A plea bargain would also not be an option as he would have to give evidence against someone who was way more important than him, and there just isn’t. It would be absolutely irrational,” Grant said.
Meanwhile, Attorney Tracy Lomax said the idea made sense in that Zuma’s testimony would sink the Guptas.
“It doesn’t make sense in that there are certain public policy considerations which have to come into this. You can’t simply allow a hardened criminal to go free just because he’s been given a 204 immunity.
The decision by the prosecutor to grant that immunity is reviewable and it has to be given by a judge following an application from the prosecution,” Lomax said.
“In theory it can happen, whether it will happen in practice is debatable because there are political considerations.”
Grant and Lomax agreed independently of each other there was no need to offer either Zuma or the Guptas immunity. Zuma also has the 18 charges – 12 counts of fraud, four of corruption, one of money laundering and one of racketeering, stemming from 783 payments of more than R4 million allegedly made to and on behalf of him by Schabir Shaik and his Nkobi Group between 1995 and 2006 – also outstanding.
Lomax said Zuma was the alleged criminal behind the Guptas and the implication of a 204 for Zuma would be that the Guptas were the masterminds.
“And that’s not true,” Lomax said. There is plenty of evidence and witnesses to nail the Guptas without Zuma’s evidence. “They just need the political will.”
– Amanda Watson