In papers filed in the Pietermaritzburg high court, Jacob Zuma contests the state’s argument that his plea to have prosecutor Billy Downer removed from his arms deal trial is another backdoor bid for a stay of prosecution, but he believes he remains entitled to launch one at a later stage.
His present plea to the court, the former president stresses, is that the National Prosecuting Authority (NPA) had victimised him and violated his constitutional rights to such an extent that not only Downer but the state itself has lost legitimate standing to bring a case against him,
Hence, he argues in an 84-page affidavit submitted late on Wednesday, the high court has to acquit him on graft charges first instituted in 2005.
“I am advised, I believe correctly, that I am entitled to apply for my prosecution to be stayed, over and above demanding an acquittal,” he adds, signalling that his latest bid to have the charges thrown out may not be the last.
“I am yet to be advised, however, at which stage of the criminal process I must file an application for the process to be stayed.”
Zuma was denied a permanent stay of prosecution by the high court in late 2019.
Five months later, the appellate court refused him leave to appeal the ruling, clearing the way for him to stand trial on 12 charges of fraud, two of corruption and one each of money-laundering and racketeering for allegedly accepting bribes from accused number two, French arms manufacturer Thales.
But last month, his legal team entered a plea in terms of section 106 (1) (h) of the Criminal Procedure Act (CPA) in which he revives his narrative that the history of the case is fraught with meddling by members of the Mbeki administration in a conspiracy so elaborate that it involved foreign intelligence.
He contends that along the way Downer lost the requisite impartiality, and hence lacks title to prosecute the matter. In part two of the plea, Zuma’s legal team, of late headed by Dali Mpofu, then proceeds to argue that if bias robs Downer of title to prosecute, their client qualifies for acquittal under section 106(4) of the same Act.
The plea is forcing a trial within a trial which, on their submission, turns on whether the court gives a wide or a narrow interpretation to the provisions of the Act.
Downer, in an opposing affidavit filed last week, argued that Zuma erred in bringing the plea in terms of the Act, rather than section 35(3) of the Constitution, which safeguards the right to a fair trial.
He further submitted, with the applicable case law seemingly on his side, that in the event the court should agree with Zuma that he be removed, another prosecutor should be appointed to proceed with the trial.
In his latest affidavit, Zuma responds to this argument by saying the court is obliged to read the Constitution, in particular section 35, into the Act.
“The CPA is legislation that is designed to give effect to the rights under section 35 of the Constitution, even though it was promulgated prior to the constitution.”
He claims that his prosecution has been marred by ethnic discrimination against him as a Zulu, collusion by the former head of the now defunct Scorpions, Leonard McCarthy, with the CIA and criminal abuse of process by former national director of public prosecutions Bulelani Ngcuka for political ends.
“A court may not turn a blind eye to the evidence of criminal acts perpetrated by senior members of the NPA in which the constitutional status and legal authority of the NPA was abused to advance the political interests of my political opponents.”
He adds: “At best Mr Downer was an accomplice, at worst he was a co-conspirator.”
Should the court agree that the evidence against Downer is damning, the state itself loses title to put him on trial and therefore acquittal must follow.
This interpretative exercise the court must perform is to look at “the true meaning of title to prosecute under our constitution”, Zuma insists.
His plea requires an evidentiary hearing on two aspects. The first is whether Downer has abandoned impartiality, Zuma says, adding that here he is asking the court for leave to cross-examine the prosecutor and any other member of the NPA.
“The second aspect arises from the outcome of the first and depends on the gravity of the deviation from the requirements of a lawful prosecution … and entails examining whether the loss of title is such that the state has lost the title to present evidence against me in a lawful manner.
“The focus is entirely on whether loss of title to prosecute has resulted in a situation where the state is unable to present a lawful case against me.”
Downer has argued that should Zuma secure an acquittal on this basis, it would entitle him to argue, if the charges were reintroduced, that he had already been acquitted on the same.
Therefore, he said, the former president was, in effect, through his section 106 plea, again seeking a permanent stay of prosecution and reprising the same arguments that were rejected by the high court.
“His claim for that relief has been finally adjudicated on by a court of competent jurisdiction,” Downer said.
Zuma rejects the argument of res judicata — a matter that has been adjudicated by a competent court and therefore may not be pursued further by the same parties — though his claims of political manoeuvring by McCarthy and Ngcuka were aired in years of legal wrangling over the reinstatement of the charges. And he casts the net wide for fresh evidence, attaching to his affidavit excerpts from a recent biography of the former South African Revenue Service deputy commissioner Ivan Pillay as purported proof that his tax information was unlawfully obtained.
Downer has dismissed Zuma’s claim that he traded his independence for blind zeal, adding: “I deny that ‘foreign intelligence’ was involved in the first accused’s prosecution, let alone that I knew about it.”
The supreme court of appeal in Porritt and Another v the National Prosecuting Authority set the bar high for applications of this kind, holding that in criminal proceedings it was inevitable that prosecutors will be partisan. But commentators say Zuma’s strategy may be less about winning on points of law than politicising the trial and delegitimising the criminal justice system.