Jacob Zuma’s lawyers are preparing an application to set aside charges laid against their client, based on arguments that he will be denied a fair trial.
Zuma’s attorney, Michael Hulley, confirmed that such an application was being prepared and would be launched some time before Zuma’s corruption trial next year.
“Such an application has always been in the offing; but, yes, a decision has been taken that it will go ahead,” Hulley told the Mail & Guardian.
Hulley said he did not want to disclose details of the case, but confirmed it would be based on claims that the conduct of the investigation against Zuma — including the raids on his (Hulley’s) offices and those of Zuma’s former attorney, Julie Mahomed — had irretrievably prejudiced Zuma’s right to a fair trial.
National Prosecuting Authority (NPA) spokesperson Makhosini Nkosi said this latest move by Zuma’s defence team had not been officially brought to their notice: “We don’t share the view that Zuma has been denied a fair trial, but he’s obviously entitled to bring such an application. We’ll deal with the matter if and when it is brought to our attention, legally.”
Professor Robin Palmer, of the University of KwaZulu-Natal’s law school, told the M&G that Zuma could bring such an application based on the allegation that the raids had disclosed to prosecutors privileged communication with his lawyers relating to his defence.
No evidence of such disclosure has as yet been brought to light, and Palmer said even if it was, Zuma’s lawyers would have to show that the prejudice to Zuma could not be remedied.
The other leg for the application could be the publicity already geneÂrated by the Shaik case, which, it might be argued, would tend to influence any court to prejudge the matter. Palmer said he believed Zuma’s lawyers would have a tough time making such an argument fly.
But he added: “This case is being fought on two levels — the legal and the political — and such an application would build on the political level the perception that Zuma cannot have a fair trial.”
The move to set aside charges against Zuma appears to be part of a multi-pronged legal and political attack on the Scorpions’ investigation.
Zuma has already launched an application to challenge the legality of the search and seizure operations carried out on his homes and offices earlier this year. Julie Mahomed also successfully challenged the raid on her offices in the Johannesburg High Court, though the NPA is appealing against the ruling.
Shaik, too, has lodged papers in the Durban High Court challenging the raids, while French arms company Thint has also indicated that it will contest the searches carried out on its Pretoria offices and the home of Thint executive Pierre Moynot.
Thint is also preparing an application to challenge being joined with Zuma as co-accused in the detailed corruption charges against Zuma made public this week.
Thint lawyer AJ Sooklal told the M&G last week he believed such charges would violate the agreement reached with the NPA before the Shaik case not to charge Thint.
The disclosure of a bid to stop the prosecution also casts a somewhat different light on the bravado of the Zuma camp in relation to a possible plea bargain, which was raised publicly via leaks to the media this week. The motive may have been to weaken political mobilisation ahead of Zuma’s court appearance this Saturday.
On the political front, indications are that every effort is being made to turn Zuma’s brief appearance in the Durban Magistrate’s Court into a massive show of political support. Zuma is due to be formally served with a provisional indictment before the case is referred for trial in the Durban High Court on July 31 next year.
Zuma supporters have spoken of a rally of up to 30 000 people outside the court on Friday night and Saturday morning. The appearance has been scheduled for Saturday to avoid a repeat of the disruption of court functioning that occurred during Zuma’s last appearance. ANC top brass are expected to attend as they did on the previous occassion.
A R250 per head fundraising dinner has been organised by prominent Durban businessman Don Mkhwanazi, a trustee of the Friends of Jacob Zuma Trust, which is raising funds for Zuma’s legal defence. The trust website continues to attract a steady stream of impassioned pledges of support for the former deputy president.
Meanwhile, the draft Zuma indictment, released to the media this week, has emerged as a significant refinement of the case against Shaik.
It still covers the payment of money by Shaik on Zuma’s behalf and the alleged attempt to extract a bribe from Thint.
However, the state’s case has been honed in an attempt to close any potential loopholes raised by the Shaik case — or by Zuma’s different legal status in relation to the Thint companies, of which Shaik was a director.
Firstly, Thint has been charged not only in relation to the alleged agreement to pay Zuma a bribe of R500 000 per annum, but also as an accessory to the alleged corruption of Zuma via the series of payments for Zuma’s benefit that Shaik made from his own company.
The state alleges that Thint formed a common purpose with Shaik to suborn Zuma via these payments, incriminating the company in both sets of charges. This will allow for easier admissibility of Thint company documents — not automatically admissible against Zuma.
Secondly, Zuma’s role as ANC deputy president has been included explicitly alongside his other official roles in relation to his responsibility not to act corruptly. This was a lacuna in the Shaik case.
The period of the alleged offences has also been extended to August this year to take advantage of the legal space opened up by the tough new Prevention and Combating of Corrupt Activities Act of 2004.
The state has also given notice that further charges, relating to Zuma’s alleged failure to disclose benefits from Shaik to Parliament and to the Receiver, may be added by March next year.