Former president Jacob Zuma, facing charges of fraud, racketeering, corruption, and money laundering, has repeatedly said that he wants to have his day in court. Over the last 16 years or so he has had many days in court, but there has not been much progress in his criminal trial.
When he last appeared in court on February 23 and the case was certified as trial-ready, the matter was postponed. This was in accordance with the Judge President’s pre-trial criminal court hearings directive that it commence on May 17 and continue until June 20, and then any days thereafter if and when required.
A few weeks ago, Zuma caused a ripple of concern when he dispensed with his legal team. No reason was given.
Could this possibly have been another ploy designed by the man who is looking forward to having his day in court?
May 17 dawned, and Judge Piet Koen appeared at the bench. The state was ready, Zuma had found a new legal team to take over from Eric Mabuza attorneys, the Thales Group’s legal counsel was there, and Minister of Public Works and Infrastructure Patricia de Lille, the first witness to appear for the state, was ready.
De Lille had tweeted: “I’m ready to do my civil duty as the first witness in former president Jacob Zuma’s case on the #ArmsDeal matter. I’ve always put my faith in the independence of the judiciary and like many South Africans, I am eager for this matter to move forward and be finalised.”
Judge Koen quickly dealt with the first issue, the replacement of Zuma’s former attorneys.
Koen found that the replacement of Zuma’s counsel would not cause prejudice to Zuma and the state.
Zuma is now represented by Thabani Masuku SC, who also confirmed that he would be available for the whole period of the trial.
Cynics speculated that the trial would be postponed again.
And those cynics would have smiled with smugness when lead prosecutor Billy Downer told Koen that Masuku had, a week before, informed him that they would on behalf of Zuma apply for his (Downer’s) recusal, and that the papers would come on Monday (May 17).
And on Monday Masuku told Downer that there would be a substantial special plea made under Section 106(1)(h) of the Criminal Procedure Act (CPA).
This section provides that: “When an accused pleads to a charge he may plead that the prosecutor has no title to prosecute.”
Downer said he had not yet seen the papers.
He referred the court to Section 106(3) of the CPA which, in short, provides that the accused must give reasonable notice to the prosecutor. Masuku delivered the notice on Monday, but not the plea, which will be supported by substantial papers, including evidence under oath. Downer has been informed that the evidence under oath, the affidavit, is not yet ready. Certain annexures also have to be included before the affidavit can be signed.
Downer advised the court that it would not be in the best interests to deal with this matter piecemeal, to put the charge now, and deal with the Section 106(1)(h) plea at a later stage. He said it is inevitable that there will be some delay as the court will have to consider the papers – “which have not been given to us” – and its position, and will no doubt have to reply under oath from one or more people within the National Prosecuting Authority or otherwise to enable the court to properly appraise the plea.
Koen clarified that this is not an application for Downer’s recusal: “ … what is being raised is being raised in the context of Section 106(1)(h) as a plea.”
Koen considered the practicality of not having to return to court every few days but to provide an opportunity for the accused to file their affidavit with all the annexures, and for Downer to reflect and consider it.
Koen questioned whether there is any point in considering Section 106(1)(h) until it has been pleaded.
“It might be a case of formalism, I am not sure. If it was an application for your recusal then it would be brought on notice, with affidavits to follow. Is it procedurally correct, to deal with this under the auspices of Section 106(1)(h) until it has actually been pleaded? Or are we going to be faced with a situation that the affidavit detailing the grounds for the plea will be prepared and then submitted to you, by Wednesday, May 19, and a plea be recorded on that day?” The affidavit would simply provide the detail of what that plea entails.
Downer replied that this all turns on the point that the state must be given notice, and that it has not been given notice – “today is the first time we have heard of it, we haven’t yet seen it, so I would assume we can interpret this as notice of substantial content of the notice in terms of Section 106(3)”. And added that without notice they cannot consider the plea.
Koen summarised that the affidavit will be filed on behalf of Zuma, raising the grounds on which the plea will be raised in terms of Section 106(1)(h) by Wednesday (May 19).
Essentially, the state would then accept that as a notice, and file the answering affidavits as required, and consider its stance, even though it hasn’t formally been entered as a plea. This would be acceptable on the basis that court resumes on May 26, and the plea be recorded on that day.
Koen said it wouldn’t “be correct to hear arguments of what might be contained in the affidavits unless it has formally been entered as a plea”.
Downer agreed, with respect, with the exception of a proviso in the event that there is something they don’t agree with that might change their position.
Koen asserted that the affidavit will deal with the grounds for advancing the Section 106(1)(h) plea – “nothing more, nothing less”.
Masuku agreed with this approach “as long as they have the opportunity to formally enter this as a plea at the next appearance”.
The wheels of justice turn slowly, but perhaps, at long last, the trial will see the light of day.
Zuma may have reached his limit of outrunning the law.
Read: Judge Zondo solves tricky impasse (Jul 2019)