ANC president Jacob Zuma’s corruption trial will not go ahead in August this year.
The Mail & Guardian has established that the legal teams of both Zuma and French arms company Thint have told the National Prosecuting Authority and KwaZulu-Natal Judge President Vuka Tshabalala that they will not be ready to proceed on August 4, when Zuma is due to appear in the Pietermaritzburg High Court.
The M&G understands that this is because separate applications are to be made in the trial court and judgements by the Constitutional Court on the controversial Zuma raids in 2005 are outstanding.
However, there are also tactical considerations. If Zuma can delay his trial until after next year’s general election, he will be elected national president before the case is finalised.
Sources close to Zuma and his trial said one of the following scenarios could unfold:
– The NPA will proceed with the charges, with Zuma spending most of his first year as head of state in court;
– The NPA will stall the prosecution until after he leaves office;
– Zuma’s Cabinet will pass legislation preventing the state from charging a sitting president.
However unlikely, the option of a presidential pardon is also under discussion again in ANC ranks.
Although ANC spokesperson Jessie Duarte refused to speculate on the party’s attitude to a sitting president facing criminal charges, the M&G has established that there is increasing talk of a constitutional amendment to postpone charges against a president while in office.
A businessman close to Zuma said: ‘This is part of the discussion in the alliance, but they are taking a step-by-step approach. First we have to wait for the Constitutional Court ruling on the searches. And there is the Mauritius application.
‘The thinking is: why agree to a court date when there is so much still undecided? So we will kick for touch on the court date, both because of legitimate legal concerns and for tactical reasons.
‘The next step will be to apply for a permanent stay of prosecution.â€
Even if unsuccessful, he said, this would take Zuma past the election period. ‘Then we will see the party move an amendment to the Constitution to postpone the prosecution until he is out of office, the justification being that there are such provisions in many established democracies. But we’re nowhere close to that stage yet.â€
A justice department source said the NPA was unlikely to apply international precedent because Zuma has already been charged. ‘Zuma will have to bring legislation. This not a new case, he was charged long before he became president, if that happens.â€
A senior ANC source, however, says there are ‘new whispers†about a presidential pardon for Zuma. ‘As the reality of the case approaches, certain Zuma supporters realise that the likelihood of a conviction is high.â€
On Thursday, Tshabalala met the NPA and the legal teams of Zuma and Thint to discuss a new trial timetable.
It was agreed that on August 4 Zuma will bring an application for acting NPA boss Mokotedi Mpshe to review the case against him, as it did in the Jackie Selebi matter. Mpshe appointed a four-person committee to examine the evidence against the police chief before he decided to reinstate charges against Selebi.
At the time, Zuma’s legal team made the same request to Mpshe, but it was rejected.
If the application fails, Zuma and Thint will apply for a permanent stay of charges towards the end of September. This means that the permanent stay application will only be heard towards the end of the year. This application will include serious constitutional argument and it is highly likely that whatever the judgement, it would be taken on appeal to the Constitutional Court.
The meeting with Tshabalala was preceded by a letter he sent to all the parties requesting a meeting to reach clarity on the timetable for the trial, which is expected to last several months.
It was reported this week that Tshabalala was not informed about the court dates, but the M&G is in possession of two letters written by state prosecutor Anton Steynberg to Zuma and Thint’s lawyers, discussing the timetable. Both were copied to Tshabalala.
In the first, written on December 28 — the day Zuma was recharged — Steynberg says the Scorpions are ‘now satisfied that the outstanding investigation and litigation which prevented the trial from proceeding has been sufficiently resolved to enable the NPA to take the decision to institute fresh prosecution against your clientsâ€.
Although the period August 4 to December 12 was set down for the trial, Steynberg says the state will proceed at an earlier date if the accused so wish.
He also asks Zuma and Thint to bring any applications, including an application for a permanent stay of prosecution, ‘well in advance of the abovementioned trial date — so as to avoid any delay in the commencement of the trialâ€.
On March 31 Steynberg wrote that he had received no indication from Zuma or Thint about whether the trial dates were unsuitable and again drew their attention to the NPA’s request that interlocutory applications be brought long before the trial starts. He suggested a meeting with Tshabalala to discuss a timetable for ‘any pre-trial applicationsâ€.