There have been so many postponements, court cases, judgments and lawyers that one would be forgiven for getting confused. The only constant is the man himself, former president Jacob Zuma, presently incarcerated on contempt of court charges.
Stalingrad Season 27
The criminal trial, State versus Zuma and Another (Thales South Africa), still looms ahead, though somewhat hazily.
For some 20 years the state has been trying to get the man himself to answer to the many criminal charges brought against him.
Zuma apparently really wants to give evidence, but “doesn’t ask for the opportunity to do so”. In fact, he seems to use every attempt to dodge and sidestep the opportunity.
His decades-long strategy of using every legal avenue possible to avoid prosecution led to Wim Trengove SC, counsel for the state, referring to this current scenario as “Stalingrad Season 27”.
Zuma’s lawyers recently came up with a new argument – that the state prosecutor Billy Downer is conflicted and biased, and that Zuma’s rights to a fair trial would be put in jeopardy. Hence they brought a special plea under Section 106(1)(h) of the Criminal Procedures Act (CPA) for Downer to recuse himself.
The argument to endorse the special plea coughed up more than 1 000 pages that the state had to reply to, which it no doubt did voluminously.
Similar to a ping-pong match in which wads of documents are exchanged instead of a ball.
On May 27 the date for the special plea to be heard was set for July 19, in the Pietermaritzburg High Court with Judge Koen presiding.
But many things have happened since then, including Zuma ending up in the Estcourt Correctional Services Centre.
Present but not physically present
All parties, including Zuma from his prison cell, were “present” at this virtual hearing.
However, Dali Mpofu SC, counsel for Zuma, had applied for a postponement of this matter as Zuma “strongly objected” to the proceedings taking place on a virtual platform, as his rights to a fair trial would be breached.
While Zuma was in full view of everyone, including the public, Mpofu argued that Zuma had the right to be present, as “a trial must take place in the presence of the accused”.
Zuma’s unsigned affidavit had only been delivered to Koen 20 minutes before commencement of the proceedings.
Mpofu requested a declaratory relief, and argued that Zuma’s rights to a fair trial would be negatively impacted by a virtual hearing as it would not be possible to communicate with his counsel, and that they wished to lead oral evidence. The court was also informed that Zuma wanted to give evidence.
No dispute on facts
Trengove argued that oral evidence is not necessary or justified for the determination of the special defence, for three reasons:
- It is bad in law;
- The facts advanced in support of the special defence simply do not sustain such a defence, and there are no disputes in regard to facts – hence there is nothing to be resolved by oral evidence; and
- Most of these issues were dealt with in the Supreme Court of Appeal (SCA) in the Spy Tapes judgment, dismissed by a full bench of the high court.
Trengove further argued that the debate on the special plea is on paper before the court (set out in the affidavits and heads of argument), and can be heard virtually.
Trengove also argued that when Zuma refers to “giving evidence”, it means that he wants Downer and various other officials to be subjected to cross examination by his counsel.
There is a duty on the state to prosecute corruption
Trengove reminded the court that the Constitution and the Bill of Rights, including international law, imposes a duty on the state to prosecute fraud and corruption.
“The right to a fair trial is not a one-way street, and the Constitutional Court has made this plain on more than one occasion … it also demands fairness to the public and to instil public confidence in the criminal justice system.”
Trengove advised the court that Zuma has for more than 10 years “taken every point in the book to avoid having his day in court and is desperately trying to avoid the charges of corruption, fraud, and money laundering made against him … he raises the same objections again and again”.
Trengove said Zuma is unable to refute Downer’s evidence and the witnesses supporting his evidence, and that “this is a symptom of his recognition of the failure to make a case”. And that Zuma therefore resorts to a request for a referral to oral evidence.
Trengove told the court that Zuma’s conspiracy theory of political interference “was the core issue in the spy tapes case, which was scathingly dismissed by the SCA as irrational, and now Zuma wants to revive this conspiracy theory without any fresh evidence … this conspiracy theory has been thoroughly rejected again and again and again”.
Trengove drew a comparison between Zuma’s current heads of argument and the application for leave to appeal the full-bench decision of the Constitutional Court, informing the court that 135 paragraphs were simply lifted from the heads of argument to the Constitutional Court.
Trengove proceeded to read out examples of the exact cut-and-paste paragraphs, and said “all the core issues on which Zuma now relies, and on which he demands an inquisitorial investigation, are the same issues on which were decided against him by a full bench and in respect of which he abandoned his application to the Constitutional Court”.
“For this reason this special plea is excipiable and there is no justification for any oral hearing at all.”
‘This case is heavily disputed’
Zuma’s counsel Thabani Masuku SC disagreed and claimed that the facts are heavily disputed.
Masuku also complained that they had to listen to Trengove for two hours.
Masuku told the court that the state had already decided how this matter should be dealt with, and that it was wrong that there are no disputes of facts. Masuku also alleged that Downer’s entire premise that is there is no “prosecutorial misconduct” has “undermined the fair trial rights of Zuma”, and added that if Zuma’s rights were violated he would be entitled to an acquittal.
Masuku also accused the state of delaying Zuma’s trial.
Koen stated that either the case is made out for postponement or it isn’t, and that he was concerned about the attitude.
At the end of the arguments, Trengove informed Zuma’s counsel that the Estcourt Correctional Facility prison has given Zuma three options to consult with his counsel:
- Unlimited personal visits;
- Unlimited time on the Zoom virtual platform; or
- Unlimited use of a telephone
On Tuesday (July 20) Koen handed down a ruling adjourning the trial to August 10 to 13 to hear the arguments for and against the recusal of Downer. The declaratory relief application will be heard on August 10. Koen’s ruling in regard to the virtual hearing stands, and all parties were requested to submit any considerations and or prejudices that may result from that to him by August 2.
The Supreme Court still has to rule on Zuma’s rescission application.
Much can happen over the next three weeks.