Court of public opinion: The growing number of supporters of the former president outside court, such as this military veterans’ association member, could be a sign his strategy is working. Photo: Phill Magakoe/AFP
NEWS ANALYSIS
Jacob Zuma’s latest bid to have the arms deal charges against him thrown out of court could falter at the first, technical hurdle but he faces several in a strategy that owes more to politics than law.
The National Prosecuting Authority contends that the former president errs in bringing a special plea for the removal of advocate Billy Downer, on the basis that the lead prosecutor has abandoned impartiality, in terms of section 106 (1)(h) of the Criminal Procedure Act (CPA).
One would have expected such an argument to be brought in terms of section 35(3) of the constitution, but in relying on the CPA, Zuma’s lawyers then move that if a perception of bias robs Downer of title to prosecute, their client qualifies for acquittal on section 106(4) of the same act.
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In his affidavit, filed with the Pietermaritzburg high court on Wednesday, Downer says that should Zuma be successful in arguing for his acquittal, this would entitle him to argue, if the charges were reintroduced, that he had already been acquitted on the same. Hence he was in effect again seeking a permanent stay of prosecution, which he was denied by the high court.
In the alternative, Downer argues that Zuma should not be allowed to revive arguments that were definitively dismissed by the high court in 2019.
To these, Zuma’s submission seeks to add the further claim that the former boss of the defunct Scorpions, Leonard McCarthy, not only conspired to manipulate the timing of his initial indictment but was moreover a CIA spy.
It is arguably irrelevant as the application does not concern McCarthy directly but Downer, who submits: “I deny that ‘foreign intelligence’ was involved in the first accused’s prosecution, let alone that I knew about it.”
In court last week, as the plea was formally submitted, Judge Piet Koen noted that the case law on applications of this nature was not voluminous.
Porritt and Another v the National Prosecuting Authority involved two accused indicted on fraud charges in 2004 and mirrors the Zuma matter in that they, to quote the Supreme Court of Appeal, sought to employ “all available strategies to delay the onset and subsequent continuation of the trial as much as possible”.
They successfully argued in the high court for the removal of two prosecutors from the case, claiming as Zuma now does that their right to a fair trial would be compromised. But the SCA overturned the ruling and held that: “In adversarial criminal proceedings such as ours, it is inevitable that prosecutors will be partisan.”
The SCA upheld the high court’s dismissal of the argument by the accused that the title to prosecute was fundamental to the validity of a trial, and once the prosecutors were removed, they were entitled to acquittal in terms of the section 106(4) — the same clause Zuma seeks to invoke. The court had ordered that in such an instance, other prosecutors be appointed, as Downer argues.
Constitutional law expert Pierre de Vos said that while Zuma’s bid for acquittal may be flawed in law, his true defence strategy was a political one aimed at delegitimising the criminal justice system and winning in the court of public opinion.
“The whole case is more based on the politics of the situation and the public perception. They are trying to find something that is going to resonate with the public,” he told the Mail & Guardian.
By again staging a trial-within-a-trial, Zuma is also winning time.
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The number of ANC politicians converging at the Pietermaritzburg high court to show their support is growing. In the meanwhile, allegiances within the party may shift as more and more prominent figures in provinces and cabinet, Health Minister Zweli Mkhize being the most prominent, face serious allegations of corruption.
“It is going to become difficult for the party to manage, they are going to be unable to stop people going to court to support Zuma or to say they’re going to discipline them all,” political analyst Ralph Mathekga told the M&G.
He foresees the ranks of the so-called coalition of the wounded likely growing to the point of acute discomfort for Ramaphosa, and thinks suspended secretary-general Ace Magashule and the former president’s thinking are not that far apart in that both are essentially fielding political arguments.
“Magashule’s strategy is not that different from Zuma’s. He’s saying he just wants the step-aside rule to be applied fairly and evenly. He knows that if they do that half the party will be gone and is hoping they will propose a compromise.”
It is too late for Zuma to bank on a political realignment resulting in the charges against him being withdrawn, just as it was too late for Ramaphosa to halt his renewal drive as much as his makeshift allies may now feel threatened.
“It is out of the government’s hands now,” Mathekga said.
“But Zuma is hoping it might get to the point where people think this is enough, they are tired of the trial now, he is an elderly man, maybe it is enough taking his pension.”
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