Whether Jacob Zuma will eventually go to prison or not has been asked on and off since June 2005, when he was fired as deputy president by Thabo Mbeki after he was implicated in impropriety relating to the arms deal.
Back then nobody could foresee that the question would be answered by the apex court, on an unrelated matter, while Zuma is still relying on his nine legal lives to evade the corruption charges related to the contract to combat suites for the South African navy.
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In the Pietermaritzburg high court, Zuma’s latest strategy is to attack the integrity not only of Billy Downer, the prosecutor who first brought corruption charges against him in 2005, but the National Prosecuting Authority (NPA) as a whole.
His new lead counsel, advocate Dali Mpofu, has argued in papers that should the defence’s application to have Downer removed from the case, in terms of section 106(1)(h) of the Criminal Procedure Act and on the basis that he has abandoned impartiality, succeed, Zuma would then qualify for acquittal in terms of section 106(4) of the same Act.
Lawyers for Downer and the NPA have countered that this was another, dissimulated attempt to seek a permanent stay of prosecution. Zuma was denied as much by a full bench of the KwaZulu-Natal high court in October 2019.
He had argued, inter alia, that the marathon delays in the matter had put the possibility of a fair trial beyond hope.
The Supreme Court of Appeal (SCA) in early 2020 dismissed his application for leave to appeal the high court ruling. When Zuma subsequently abandoned plans to petition the Constitutional Court directly, that appeared to bring finality to the matter and 17 May was set down as a trial date.
Meanwhile, Zuma’s entourage told all who would listen that he had rejected advice from his erstwhile lawyers to seek medical treatment abroad because he wanted to clear his name in court.
Instead, when the trial date came, he angled for Downer’s dismissal.
His latest court papers in reply to the NPA’s responding affidavit argue that the section 106 application is not another stab at a stay of prosecution, but confirms that such an application will follow later, and that, yes, this will test the bounds of delay as defence (and belief).
“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 submitted.
His court papers retrace the timeline of the case, and revives his timeworn arguments that political meddling has tainted it irredeemably.
Zuma was charged in 2005 after his former financial adviser Schabir Shaik was sentenced to 15 years in prison for corruption and fraud for soliciting bribes from Thales on his behalf.
But in 2006, KwaZulu-Natal high court judge Herbert Msimang struck the matter from the roll after pronouncing that the state’s case had limped “from one disaster to another”.
He said the prosecution should have investigated further before charging Zuma, and accused it of failing to take into account the legal challenges to search-and-seizure raids conducted to secure evidence.
The result was, he added, that Zuma had suffered social prejudice which “closely resembles punishment that should only be handed to a convicted person”.
The charges were reinstated by the now-defunct Scorpions in December 2007, days after Zuma defeated Mbeki in their power struggle for the presidency of the ANC.
In September 2008, Judge Chris Nicholson again threw out the case in a controversial judgment that faulted the NPA for not inviting representations from the accused and noted that the timing of the indictment made plausible an inference that “baleful political influence was continuing”.
It served as ammunition for the ANC to recall Mbeki as state president but was reversed by the SCA on 12 January 2009. Three months later, then-acting national director of public prosecutions Mokotedi Mpshe withdrew the charges in a decision that returned to Nicholson’s reasoning, adding that transcripts of wire-tapped conversations (the so-called spy tapes) pointed to political manoeuvring as to the timing of the indictment.
Zuma was free to contest the presidency, having in the interim been acquitted on a charge of rape.
The Democratic Alliance promptly launched a legal review of Mpshe’s decision that would stretch almost the duration of Zuma’s presidency, along the way resulting in the anti-climatic release of the spy tapes from which Mpshe had quoted selectively to justify withdrawal.
In 2016, the high court set aside the decision to discontinue his prosecution as irrational, and the following year the SCA upheld the ruling.
Then came the former president’s doomed application for a stay of prosecution, followed by bickering between the state and the defence about pre-trial issues and missed court appearances by the accused on the basis of a defective sick note that led to a suspended arrest warrant.
In court papers this month, Zuma charged that: “[…] 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 added: “At best Mr Downer was an accomplice, at worst he was a co-conspirator.”
Downer has countered that if there was meddling, he knew nothing of it, and that the application flew in the face of the res judicata principle, which states that the same matter cannot be decided twice.
“His claim for that relief has been finally adjudicated on by a court of competent jurisdiction,” he said.
The legal fraternity agrees Zuma’s strategy is grounded more in politics than sound law. So, too, was his response to the Zondo commission — as it sought to compel him to testify — and to the Constitutional Court after it handed down a ruling in January instructing him to obey summons issued by the state capture inquiry.
It served him badly in the contempt matter, with acting Deputy Chief Justice Sisi Khampepe ruling that the intensity of his attacks on the judiciary constituted an aggravating factor in determining the length of imprisonment.
The majority judgment penned and read by Khampepe found that the court had rarely dealt with a matter so deserving of urgent, decisive action.
Zumas unrelenting attacks on the judiciary “disclose no cogent, genuine, or factually supported critiques of this court or any of the other institutions and individuals whose integrity and motives he so casually and emphatically denounces,” said Khampepe.
She added Zuma displayed a leitmotif when he accused the apex court of acting unconstitutionally in ruling in the commission’s favour in January and ordering him to respect summons. This occurred while his application for Deputy Chief Justice Raymond Zondo’s recusal — again because of bias — was still pending.
This was not only unfounded in law but intended to “confuse the public”, she said adding that his attempt to equate the legal prerogatives of the commission with a witch-hunt was “dangerous, unfounded and intolerable”.
The immediate focus is on whether Zuma will hand himself over to the police by Sunday, as the court demanded, and how much of his sentence he will serve.
Section 73 of the Correctional Services Act says that someone serving a sentence of no more than 24 months may not be released on parole until a quarter of the sentence has been served.
Meanwhile, in the high court, Judge Piet Koen will be confronted with an application by Mpofu to put Downer in the witness box, likely in theatrical fashion, to question his motives in a trial-within-the-arms-deal-trial.
The state’s 16 charges against Zuma relate to 791 alleged bribes totalling R4.1-million.
The sum is negligible compared to the R57-billion the Gupta family and their associates stole from the state, according to testimony to the Zondo commission this month.
Whatever the court’s eventual conclusion in the corruption case, the question on the former president’s legal fate is shifting to whether and to what extent Zuma can be held accountable for the rent-seeking project that defined his presidency.
On Wednesday, Justice Zondo told a media briefing that the contempt sentence meant the end of the commission’s engagement with Zuma and hinted that once he had filed his final report to President Cyril Ramaphosa later this year, with his conclusions on the evidence against the former president in the absence of his own version, the rest will be up to the NPA.
“In handing down the judgment that it handed down yesterday, the Constitutional Court also marked the end of the part of the judiciary, the judiciary has done its part … whatever is left is for others and not for us,” Zondo said.
The prosecuting authority has the benefit of a presidential proclamation that allows it access to the evidence submitted to the commission which has, the commission’s chief evidence leader Paul Pretorius said in the same briefing, contributed to recent indictments on state capture charges.