JZ’s legal options unpacked


Judging by former president Jacob Zuma’s new defence team’s choices, his constitutional right to a fair trial may feature prominently in his defence strategy.

Zuma is set to appear in the high court in Pietermaritzburg on Friday (July 27) on 16 charges of fraud and corruption. He is accused of receiving a R500 000 bribe to protect French arms dealer Thint (formerly Thales) from investigations into the 1996 arms deal. Thales allegedly made the payments through Zuma’s former financial adviser Schabir Shaik, who was jailed for his corrupt relationship with Zuma.

Last week it was confirmed that Zuma had parted ways with his long -time attorney Michael Hulley and had a brand-new team, including four senior counsel. Two of the four, Mike Hellens SC and Dawie Joubert SC, are known as criminal law specialists. Muzi Sikhakhane SC and Thabani Masuku SC specialise in civil litigation, especially in constitutional and administrative law.

Zuma’s new legal team has been tight-lipped about how they intend to proceed. The hearing is set to be another postponement and the trial itself is scheduled to begin in November. But Hulley had also suggested there may be an application for a review of the decision by National Prosecuting Authority (NPA) head Shaun Abrahams to proceed with the prosecution.

A review application to the high court is an option open to the team and they would argue that Abrahams’s decision to proceed is irrational in law. But the courts have taken an increasingly dim view of the many technical preliminary cases the NPA and Zuma have launched, which have served to delay the prosecution for years — what the media has called Zuma’s “Stalingrad strategy”.

Another possibility is an application for a permanent stay of prosecution. Just before the corruption charges against Zuma were dropped by then acting prosecutions head Mokotedi Mpshe in 2009, Zuma’s team had been about to apply for a permanent stay. The application was scheduled to be made just six weeks after Mpshe made his announcement.

[Acting NPA head Mokotedi Mpshe (left) dropped corruption charges against Zuma in 2009. (Marco Longari/AFP & Gallo Images/Foto24)]

It is significant that when Mpshe announced his decision to drop the charges, he was categorical that his decision was not based on whether Zuma would get a fair trial. Rather, the political shenanigans revealed in the “spy tapes” — recordings of phone conversations, mostly between Scorpions head Leonard McCarthy and former prosecutions head Bulelani Ngcuka, that showed that the timing of Zuma’s indictment was manipulated for political reasons — were such an abuse of the prosecutorial process that to continue with the prosecution would be “unconscionable”, he said.

But Mpshe’s reasoning was trashed by the high court as irrational in law. An appeal to the Supreme Court of Appeal also failed.

But that case was decided on the legal test for rationality. The question of whether Zuma would receive a fair trial has not been canvassed by a court — it remains open.

The Constitution says “every accused person has a right to a fair trial” and then lists some of the conditions that must be met for a trial to be fair (such as the accused must be present when tried, must be presumed innocent and must be tried in a language that he understands). This is not a closed list — there may be other things that make a trial unfair, our courts have said.

Included in the list, and of relevance, is section 35(3)(d). The right to a fair trial must include the right “to have their trial begin and conclude without unreasonable delay”.

If Zuma’s team goes for an unfair trial argument, this would probably be its strongest grounds. It has been over a decade since Zuma was first charged and even longer since the bribes Zuma is alleged to have taken began — in 1995.

But if Zuma’s defence team goes this route there will probably be a fight over who caused the delays.

In a 1997 judgment, the Constitutional Court had this to say: “If an accused has been the primary agent of delay, he should not be able to rely on it in vindicating his [fair trial] rights … The accused should not be allowed to complain about periods of time for which he has sought a postponement or delayed the prosecution in ways that are less formal.”

He may argue that he should have been prosecuted alongside Shaik, accounting for a three-year delay. And that the delay with the litigation over the spy tapes (about eight years) was the result of the NPA’s decision and not his fault.

The defence team may also argue that misconduct by the prosecutors — including the shenanigans revealed in the spy tapes — has poisoned the trial.

The NPA has said in court papers that, when the prosecutions team was told of the spy tapes, they were dismayed. Prosecutor Billy Downer even cried. But the view at the time was that it was the trial court who should determine whether this would render Zuma’s trial unfair.

Zuma has relied on a number of facts to bolster his arguments over the years that the prosecution was part of a political conspiracy to eliminate him from the political arena. The courts have already rejected the idea that the prosecution was taken for an ulterior purpose — that the point of prosecuting him was not actually to secure a conviction but some other reason. But they have said it is for the trial court to decide whether these facts would render a trial unfair.

There is also a big difference between a permanent stay application — brought as a separate application before the trial begins — and an argument, made at the end of a trial, that an accused has not received a fair trial.

A permanent stay would be much harder to obtain. The defence would have to convince the court that, no matter what the trial court could do to mitigate any unfairness (for example exclude certain evidence), there is simply no way Zuma could ever receive a fair trial.

As the Constitutional Court said: “The relief the appellant seeks is radical, both philosophically and sociopolitically. Barring the prosecution before the trial begins — and consequently without any opportunity to ascertain the real effect of the delay on the outcome of the case — is far-reaching. Indeed it prevents the prosecution from presenting society’s complaint against an alleged transgressor of society’s rules of conduct. That will seldom be warranted in the absence of significant prejudice to the accused.”

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Franny Rabkin
Franny Rabkin
Franny is the legal reporter at the Mail & Guardian

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