In law, a permanent stay of prosecution is not just there for the taking.
This is what Justice Johann Kriegler said about it in 1997: “The relief the appellant seeks is radical, both philosophically and sociopolitically. Barring the prosecution before the trial begins … is far-reaching. 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.”
This week the high court in Pietermaritzburg heard argument — over four days — about whether to grant a permanent stay to Jacob Zuma, whose trial for allegations of corruption has been postponed until October.
It has been more than 15 years since Zuma’s former financial adviser, Schabir Shaik, was accused of making payments to Zuma to induce him to use his political influence to protect Shaik’s business interests. Shaik was also accused of attempting to secure an annual bribe of R500 000 for Zuma from a French arms company.
Zuma was not charged alongside Shaik, and although Shaik was convicted in 2005, the charges against Zuma have turned into a prolonged saga. This week’s permanent stay application was the latest episode in 15 years of litigation and appeals and apparent U-turns by the National Prosecuting Authority (NPA).
A permanent stay of prosecution is underpinned by the right to a fair trial, which includes the right of an accused person “to have their trial begin and conclude without an unreasonable delay”. It is a radical remedy, granted in extraordinary circumstances, the courts have said.
Nevertheless, a series of cases has developed the law about how and when courts will grant a permanent stay. It involves a balancing exercise by the court, with different factors weighed up on both sides. When a stay is sought because of an unreasonable delay, courts must weigh up a number of competing considerations. These include the length and reason for the delay, the role of the accused in asserting his rights and the prejudice to the accused. The list is not exhaustive, the courts have said.
So, if, for example, the accused is behind bars the court will weigh towards the accused, but if the delay hasn’t really affected his or her life it weighs the other way. If the case is a complex one, a longer delay may be reasonable.
This week the parties argued at length about these factors — about how much prejudice Zuma had really suffered as a result of the delay; about whether the delay would indeed affect the quality of the evidence; about whether it was Zuma, or the state, or both, at fault for most of the delays. All these will be put into the balance when the court considers what to do.
But Zuma’s team has gone a step further and made an argument that hasn’t yet been considered by a court in a permanent stay application: that one of the factors to put in the balance is a “pattern” of unconstitutional and unlawful conduct by the NPA, which it alleged manipulated the prosecution for political reasons.
“Political manipulation is what really distinguishes this case from all the cases in which our courts were considering applications for a permanent stay of prosecution,” said counsel for Zuma, Muzi Sikhakhane SC, in his heads of argument.
He argued that political manipulation was a highly relevant consideration: “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.”
But counsel for the state, Wim Trengove SC, said there were no facts to back up the political interference argument. He said the NPA had played “absolute open cards” with the court and disclosed all its internal memoranda related to its decision-making. The court knew what motivated the prosecution — “you know what the legitimate grounds were,” he said. “What remains is the spy tapes,” said Trengove.
Sikhakhane had read out excerpts from the “spy tapes” — recordings of conversations before the ANC’s Polokwane conference, mostly between former prosecutions head Bulelani Ngcuka — a “self-confessed political ally” of former president Thabo Mbeki — and former Scorpions head Leonard McCarthy.
In the tapes McCarthy referred to a Supreme Court of Appeal (SCA) justice as a “cunt” and the two lamented Mbeki’s loss at the Polokwane conference.
More importantly, they discussed the timing of the indictment of Zuma — in order to influence the outcome of the conference, said Zuma.
But Trengove said all the spy tapes showed was that “Mr McCarthy had a foul mouth; secondly, that he doesn’t like Mr Zuma; thirdly, that there was an improper discussion about the timing of the prosecution”.
“That’s the high watermark of it. It doesn’t go to the integrity of the decision to prosecute itself,” he said.
And it was not only the state that was saying so — the SCA had already found that not to charge Zuma on the basis of the spy tapes was irrational, he said. Indeed, Zuma’s lawyers had conceded it.
“There is not a shred of evidence to support the suggestion that the decision to prosecute Mr Zuma was in any way politically motivated,” he said.
Trengove added that even if the prosecution had been politically motivated, this was irrelevant because the SCA had repeatedly said that an improper motive does not make a prosecution unlawful if there is a case to answer.
However, on Monday Sikhakhane had said his argument was not about motive. He said the NPA acted unconstitutionally, and in breach of the NPA Act and its own prosecution policy in its investigation and prosecution of Zuma. This should be independently weighed up, along with the factors such as the length of the delay and prejudice to the accused.
“It was the most egregious abuse of a powerful organ of state and should never be tolerated by our courts.”
The court reserved judgment.