The Pietermaritzburg high court has set 17 May as the day Jacob Zuma’s trial on arms deal graft charges will start, more than two decades after the alleged fact and as the former president risks a punitive jail term for defying the state capture commission.
Zuma was not at court on Tuesday as his lawyers and those for the South African subsidiary of French arms maker, Thales, agreed to a trial date.
He had been expected to appear, but his lawyers late last week asked that he be excused.
The National Prosecuting Authority (NPA) said it did not have a problem with the request, as it was made in advance. In the absence of such a request, he would have found himself in contempt of the high court.
The last two days have seen an extraordinary exchange of words between Zuma and the NPA. His eponymous foundation accused the state of needlessly delaying the trial, the better to try him in the court of public opinion.
This was quickly dismissed by the NPA as “extremely disingenuous”, given that 23 February has never been a trial date but a court appearance scheduled last year to allow for the setting of a trial date.
Zuma faces 16 charges of fraud, corruption, racketeering and money-laundering stemming from South Africa’s arms acquisition programme in the late 1990s.
This issue has haunted Zuma since 2005, when his former financial adviser, Schabir Shaik, was found guilty of soliciting a bribe on his behalf and sentenced to 15 years in prison.
The state alleges that Zuma received 783 payments from Shaik, who in turn received some, if not all, of the money from Thales.
Zuma was due to go on trial in 2006, with the NPA having added the local subsidiary of French arms maker Thales to the indictment. Zuma lost a bid to set the charges aside on appeal, but they were controversially withdrawn in 2009, paving the way for him to be elected president, and only reinstated in 2018, mere months after his forced resignation.
The interim saw the Democratic Alliance’s ultimately successful legal battle for the release of the so-called spy tapes on which then National Director of Public Prosecutions, Mokotedi Mpshe, had based his decision to bin the charges based on political interference by the Mbeki administration in the timing of Zuma’s initial indictment.
But last year, the case was again delayed, pending the ruling on an application by Thales to have the racketeering charges against it dismissed. The high court application was the company’s third bid to have the charges scrapped after direct presentations to the NPA and approaching the Constitutional Court failed.
On 22 January, the court dismissed its application, strengthening the state’s hopes of securing a conviction against Zuma.
The trial is expected to be lengthy, with Advocate Billy Downer confirming that the state was ready to call more than 200 witnesses.
The trial date was pencilled in some time ago and was confirmed as Zuma’s sustained political attacks on the judiciary have prompted a damage control effort by President Cyril Ramaphosa.
On Monday, Ramaphosa cautioned: “When some in positions of responsibility choose to use those freedoms to undermine our constitutional order, they should be reminded of the possible consequences of their utterances. One of these possible consequences is the erosion of trust in the judiciary and our constitutional order.”
The president followed Justice Minister Ronald Lamola, the General Council of the Bar and a raft of commentators pointing to the danger of Zuma — and expedient allies with more significant political currency — accusing judges of bias.
In remarks later echoed by Economic Freedom Fighters leader Julius Malema, Zuma last week accused unnamed judges of having taken political sides for the sake of money and promotion.
“It is not our law that I defy, but a few lawless judges who have left their constitutional post for political expediency,” Zuma said after learning that the Zondo commission would ask the Constitutional Court to rule him in contempt for defying another summons to testify before the state capture inquiry.
Insisting that he would rather be jailed than comply with the court or the commission, Zuma added that he had suffered abuse from the courts for some 20 years; that some on the bench were “captured” and that Chief Justice Mogoeng Mogoeng and Gauteng Judge President Dunstan Mlambo had conspired to legitimise the commission when it was, in his view, not established lawfully.
The commission on Monday asked the court to sentence Zuma to two years in prison for contempt for defying summons to testify before it all of last week.
But it also allowed him one more chance of redemption. Should the court decide to suspend any sentence on the condition that he agrees to appear, commission secretary Itulemeng Mosala submitted, the commission would need to make special arrangements to accommodate his testimony before 31 March.
If he is moved to reconsider, this would be another chapter in Zuma’s long history of evading a legal reckoning until the last minute and then complying when his options have been depleted. The arms deal charges are a case in point.
Constitutional law experts have termed Zuma’s attacks on the judiciary harmful but short of a crisis.
Professor Pierre de Vos said had Zuma still been the head of state, the country would have faced a profound crisis because a stand-off between the heads of the executive and the judiciary never ends well for the latter.
He said Ramaphosa and Lamola had done well to counter Zuma’s narrative with strong words in defence of the judiciary and the rule of law, because both these needed to be respected and accepted by the population.
But, he felt, the danger was that Ramaphosa is also the head of the ruling party. The ANC had not been unanimous in supporting his defence of the judiciary, nor did it indicate that it would sanction Zuma or others who continue to impugn the courts.
“It is very important and good that they both in word and deed support the judiciary, but it appears that they are scared of their colleagues or unable to deal with the political ramifications because their stance is not reflected in action within their party,” Professor de Vos said.