Jacob Zuma’s campaign to block his corruption trial moved into high gear this week as his lawyers filed an application asking the PietermaritzÂburg High Court to set aside the decision to prosecute him.
Zuma argues the decision was unconstitutional because the National Director of Public Prosecutions failed to seek representations from him before reversing an earlier decision not to prosecute him alongside his former financial adviser, Schabir Shaik, now serving a jail term for fraud.
Zuma’s attorney, Michael Hulley, has also upped the stakes in the Constitutional Court by writing to Chief Justice Pius Langa to express his client’s ‘unease and disquiet†over the effect of the Hlophe saga.
The Constitutional Court last week lodged a detailed complaint with the Judicial Services Commission (JSC) alleging Cape Judge President John Hlophe attempted to influence two judges of the court in Zuma’s favour.
Judges Bess Nkabinde and Chris Jafta were involved in the hearing of Zuma’s constitutional appeal challenging the legality of the raids carried out by the Scorpions during their investigation of him.
Hlophe has laid a counter-Âcomplaint against the court for making its initial complaint public.
In his letter, Hulley appears to be laying the basis for a possible challenge to the highest court’s fitness to rule on the Zuma matters, noting: ‘These complaints relate directly to the adjudication process in respect of our client.â€
He further warns: ‘Accordingly, our instructions are to vigilantly monitor the complaints referred to the JSC with a view to safeguarding our client’s rights while equally respecting the high office to which all the parties to the dispute have been called.â€
But Hulley told the Mail & Guardian he was not questioning the fairness of the court: ‘There are formal procedures if you want to ask for the recusal of judges or if you think the court is not able to make a proper judgement. We haven’t embarked on any of those.â€
However, the court is taking the matter seriously.
Langa has written to Zuma’s lawyers and the National Prosecuting Authority requesting them to table any submissions they might wish to make on the effect of the Hlophe complaints by next Friday, July 4.
That process will at the very least delay the Constitutional Court’s verdict on the legality of the Zuma raids. This verdict will affect the admissibility of material gathered in the raids as evidence in Zuma’s trial.
But Zuma’s actual day in court is looking increasingly far off.
The Pietermaritzburg challenge raises a direct constitutional issue, which means that it will be taken to the Constitutional Court regardless of the decision of the Pietermaritzburg court.
In that case, Zuma is relying on section 179 of the Constitution, which allows the National Director of Public Prosecutions to review a decision to prosecute ‘after consulting the relevant director of public prosecutions and after taking representations within a period specified by the National Director of Public Prosecutions from the following: (i) the accused person; (ii) the complainant; (iii) any other person or party whom the National Director considers to be relevant.â€
The section is generally understood to apply to decisions taken by subordinates.
The provisions for consultation and representations were intended to provide some checks to the centralisation of the prosecuting authority created by the establishment of a single national director.
Zuma argues that the provision also applies when the national director revisits a decision taken by his predecessor.
Zuma adds that even if the section is not applicable, the failure to invite representations before the institution of his current prosecution was unreasonable and unlawful.
In his founding affidavit Zuma states: ‘There was absolutely no reason why I should not have been afforded such an opportunity unless the [National Prosecuting Authority] and especially the office of the NDPP [National Director of Public Prosecutions] wished to avoid being confronted by representations which were either unanswerable or which put the NDPP and especially the Directorate of Special Operations [the Scorpions] in a bad light.â€
Zuma gives one example of representations he considers ‘unanswerableâ€: the fact that he has now settled his tax obligations with the South African Revenue Service in relation to all the money he was paid by Shaik.
He asserts that there could therefore be no basis for continuing with the tax charges against him.
Zuma also points out that the decision to re-prosecute him after his election as ANC president ‘clearly had enormous public interest ramifications†that should have led the National Director of Public Prosecutions to seek representations from him before finalising his decision.
The lawyer’s letter
Michael Hulley, the lawyer for ANC president Jacob Zuma, this week wrote to Chief Justice Pius Langa to express concern about how the recent row over Cape Judge President John Hlophe could affect cases involving Zuma. The judges of the Constitutional Court have complained that Hlophe tried to influence them improperly; he has, in turn, made a complaint against them for making the issue public. This is the text of Hulley’s letter, printed verbatim:
‘We act for and on behalf of Mr Jacob Zuma —
‘As you are no doubt aware, the court had reserved judgment in respect of both matters, which were much published in the media and of grave importance to the litigants. Please regard this letter as the most gentle enquiry as to when the judgments may be expected if it is at all possible to respond to this at this time. As a rule we would not have resorted to this expedient at this stage aware as we are of the complexities of the matters. We are however, perturbed by speculations that the judgments may be delayed until certain matters which have arisen since the hearing, have been laid to rest. Recently and attracting even greater media attention than the actual litigation, have been the complaints lodged with the Judicial Services Commission (‘JSC’) by the Honourable Judges of the Constitutional Court on the one hand and the Honourable Judge President Hlophe on the other. These complaints relate directly to the adjudication process in respect of our client.
‘Disturbing allegations and counter-allegations of the most serious import have been made, the logical adjudication of which would invariably impact on the credibility of either the complainant or those complained against with all the necessary adverse inferences to be drawn.
‘Whilst not pre-empting the finding which the JSC would be enjoined to make, the purpose of this correspondence is to register our clients unease and d’squiet at these developments. Respect of our constitutional democracy and due process is the principle to be jealously guarded. Unfortunately, and with the greatest respect, these developments do little to engender and promote the principle, the resultant effect of which is the eroding of confidence in those mandated to give effect thereto.
‘Accordingly, our instructions are to vigilantly monitor the complaints referred to the JSC with the view to safeguarding our clients rights, whilst equally respecting the high office to which all the parties to the dispute have been called.
‘Yours faithfully,
‘MICHAEL HULLEY
‘HULLEY & ASSOCIATES INCâ€