A stay of prosecution for Zuma would threaten the rule of law — state

There was a high risk to the rule of law if a permanent stay of prosecution was to be granted to former president Jacob Zuma, the high court in Pietermaritzburg heard on Thursday.

Zuma was charged with corruption, racketeering and money laundering after the 2005 conviction of his former financial adviser Schabir Shaik. Shaik was charged with paying R1.2-million to Zuma, who was then the deputy president of the country, over a period of seven years, to induce Zuma to use his political influence to protect Shaik’s business interests. He was also accused of attempting to secure an annual bribe of R500 000 for Zuma from French-owned company Thales SA.

Zuma was not charged alongside Shaik.

This week his legal team argued that his trial should be permanently halted because it has been irredeemably tainted by political interference and a marathon delay of 15 years.

On Thursday, counsel for the state, Wim Trengove SC, said the charges Zuma faced were very serious. “He is accused of corruption, racketeering and money-laundering while in high office. He managed to avoid prosecution while in the highest office. He managed to do so by using, to the hilt, the constitutional legal system available to him — at a public expense of between R16-million and R32-million,” Trengove said.

He said fundamental to the rule of law was the principle that everyone is equal before the law. “It is very important that when a very powerful public official is accused of a very serious crime that he be seen to be treated the same as everybody else.”

Trengove argued that Zuma had not shown — on the facts — that there had been any political meddling in the decision to charge him. The “highwater mark” of Zuma’s case on this score was the spy tapes — recordings of telephonic conversations ahead of the ANC’s Polokwane conference in 2007, mostly between former prosecutions head Bulelani Ngcuka and former Scorpions head Leonard McCarthy. In the tapes, the two discussed the timing of the indictment of Zuma — in order to influence the outcome of the conference, Zuma said.

But at worst, the tapes showed that there was an improper discussion about the timing, which did not affect the integrity of the prosecution itself. The Supreme Court of Appeal had also already found that the tapes were not a basis to drop the prosecution, he said.

In any event, the courts had repeatedly made clear that even if there was a bad motive for prosecuting, this did invalidate the prosecution, if there was a case to answer, he said.

Trengove agreed that Zuma had suffered terrible damage to his reputation. But he said the damage was the result of the judgment in Shaik’s case, which though damning, was not the result of the delay. The reputational damage should also not be exaggerated, he said. “Mr Zuma’s public career flourished during this period,” he said, adding that Zuma was elected president in 2009.

Trengove said that, even the court found there had been an unreasonable delay, for a permanent stay to be granted, Zuma’s team had to furthermore show “irremediable prejudice to the trial” or truly extraordinary circumstances. This Zuma’s lawyers had not done, he said.

The hearing continues.  

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

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