The National Prosecuting Authority (NPA) violated the Constitution, the NPA Act, its own code of conduct and its prosecution policy in how it treated former president Jacob Zuma, the high court in Pietermaritzburg heard on Monday.
Zuma was applying for a permanent stay of his corruption prosecution — set to resume in October — saying the prosecution was so tainted by political and external influences, and has been delayed for so long, that the only just and equitable solution is to permanently stop it in its tracks.
A permanent stay of prosecution is an extraordinary remedy, only granted in exceptional circumstances. In court on Monday, Zuma’s counsel, Muzi Sikhakhane SC, sought to persuade a full bench that the way Zuma’s prosecution had unfolded was indeed extraordinary — enough to grant a permanent stay.
In this case, it was not Zuma but the state that was on trial, he said.
“You are the custodians of how organs of state must act … It is the court’s function to determine whether all the factors, m’lord, that you say you may want to consider, can ever justify an organ of state granting itself power to act unconstitutionally and unlawfully, as we are submitting.”
Sikhakhane had earlier taken the courts through the “spy tapes” — recordings of phone conversations, mostly between former prosecutions head Bulelani Ngcuka and former Scorpions head Leonard McCarthy about when to time the indictment of Zuma.
Reading excerpts from the tapes where McCarthy had referred to a Supreme Court of Appeal justice as a “cunt”, Sikhakhane said the tapes showed that “a president was involved in their discussion, a minister was involved in their discussion, that the timing of the prosecution had nothing to do with the prosecutorial functions.”
“When an organ of state as powerful as the NPA — now, in the future, or in the past; because it will be us one day — when they discuss with political players … who have nothing to do with the prosecution, our courts, which are the custodian of constitutionalism, must not tolerate it — simply because we are dealing with a suspect who may have committed what we don’t like”.
Sikhakhane said this point was not about the motive behind the prosecution. He was responding to an argument raised by the state in its written argument that the courts had said many times that the motive for a prosecution was irrelevant if there was a case to answer.
“We are not dealing with motive, we are dealing with the fact that an organ of state acted unconstitutionally … And this court must tell us if, when it balances it with other things, that unconstitutional conduct can be condoned”.
Outside the court Zuma gave the several thousand supporters who had turned out in solidarity with him a detailed breakdown of the days proceedings, telling them that his legal team had gone to court to ensure that justice was meted out to all equally.
Zuma said the NPA had been investigating him and his friend and comrade, Schabir Shaik, but had decided to charge Shaik only despite their advice to charge the two of them together.
Earlier in court Sikhakhane said that when the NPA — under Ngcuka — decided to prosecute Shaik and not Zuma, this amounted to “trying him in his absence”.
Describing himself as an ”innocent South African”, Zuma said that the state had no case against him, with prosecutors breaking the law themselves to try and get to him.
Zuma said that his lawyers had submitted a transcript of the spy tapes to the court to show that there had been a conspiracy between NPA lawyers and politicians to arrest and charge him ahead of the ANC’s Polokwane conference.
The application will continue tomorrow with lawyers for Thales SA, the French-owned company that is co-accused with Zuma will make its own application for a permanent stay and to review the decision — by former NPA head Shaun Abrahams — to reinstate the prosecution.