Former president Jacob Zuma. (Gulshan Khan/Getty Images)
An application by former President Jacob Zuma for a permanent stay of prosecution failed on Friday, clearing the way for his trial to proceed after a marathon 14-year delay since he was first charged with corruption relating to the infamous “arms deal” — the 1999 purchase of “strategic armaments” that has been mired in allegations of corruption.
Zuma now faces prosecution for 12 counts of fraud, four counts of corruption, one count of racketeering and one of money laundering. His trial is scheduled to begin next week, but there is already speculation that it will be postponed.
The former president had gone to court to stop the prosecution in its tracks, on a number of grounds, including that the marathon delay has irredeemable tainted the possibility of a fair trial.
He should have been prosecuted in 2003 alongside his former financial adviser Schabir Shaik, his lawyers argued. The reason he wasn’t was because of a vicious political campaign against him – to pillory him in the court of public opinion, yet never give him the opportunity to clear his name. State institutions – particularly the National Prosecuting Authority (NPA) and its now defunct Scorpions – were crucial players in this campaign, argued his legal team; and the result was that he was never going to get a fair trial.
But a full bench of the KwaZulu-Natal (KZN) high court rejected these arguments. After a detailed recounting of the history of the case — this history makes up almost half the judgment — a judgment penned by “the court” found that he had “formed common cause” with the NPA in much of the intervening litigation responsible for the delays.
The court first addressed Zuma’s argument about the decision of former prosecutions head Bulelani Ngcuka to charge Shaik and not Zuma; yet still announce that there was a prima facie case against him. Zuma had argued that there is an obligation to prosecute once there is a prima facie case.
But the court said: “The difficulty with this proposition is that the legitimacy of the test, which Mr Ngcuka applied was confirmed by Harms DP in National Director of Public Prosecutions v Zuma”. This was the 2009 judgment of the Supreme Court of Appeal (SCA) in one of the many intervening court cases in the Zuma prosecution saga.
Former SCA deputy president Louis Harms said in 2009 that having prima facie evidence did not always mean that there was a reasonable prospect of success – the test for bringing a prosecution. “Although corruption involves two persons, the fact that one may be guilty does not mean the other is also guilty because the intention of each party must be decided separately,” said Harms.
The KZN court also found “fundamentally flawed” the argument that Ngcuka’s decision was “part and parcel of a grand political scheme”. Mr Ngcuka had explained his actions, said the court, and his evidence was uncontested.
The complaint that he should have been charged alongside Shaik had been raised before, said the court – by Shaik himself when he appealed to the Constitutional Court. The highest court had rejected the argument, saying that, while there may be good reasons for joint trials, it did not make a specific trial unfair because other possible perpetrators are not tried alongside.
“As we see it, even if a joint trial would have had some benefit for Mr Zuma of which he was deprived of as a result of his prosecution being separated from Mr Shaik … it does not constitute prejudice of any kind which would impact on the fairness of his trial,” said the KZN court on Friday.
The court also addressed Zuma’s argument about the Spy Tapes – recordings of phone conversations between former Scorpions’ head Leonard McCarthy and Ngcuka about when to the time the indictment of Zuma, in order to influence the outcome of the ANC’s Polokwane elective conference in 2007. Zuma’s team had argued that the tapes were conclusive that the prosecution was manipulated for political purposes, in flagrant disregard of the Constitution.
The revelations about the spy tapes were what led the dropping of charges against Zuma in 2009. Then followed a marathon court case by the Democratic Alliance to set aside the decision to drop the charges. It ended at the Supreme Court of Appeal years later, with a concession by Zuma’s team that the decision to drop the charges was irrational.
This concession came back to bite the team in the permanent stay application. The court also once again quoted the judgment of Harms, that “a prosecution brought for an improper purpose is only wrongful if, in addition, reasonable and probable grounds for prosecution are absent”.
So “assuming that Mr Zuma’s accusation was true, that his prosecution is politically motivated, his contention would still be unsustainable,” said the court.
“The seriousness of the offences that Mr Zuma is facing outweighs any prejudice, which he claims he will suffer if the trial proceeds,” said the judgment.
The application by co-accused French arms company Thales for a permanent stay was also refused.
Read the judgment below:
JZ and Another. vs the State by Mail and Guardian on Scribd