The state is opposing an application by former president Jacob Zuma, filed against the backdrop of violence orchestrated in response to his imprisonment, to have the hearing of his plea for acquittal on arms-deal corruption charges postponed.
In an answering affidavit, state prosecutor Billy Downer dismisses the application as “another delaying tactic” in the long-running legal saga in which Zuma faces one count of racketeering, two counts of corruption, one count of money-laundering and 12 counts of fraud.
Zuma’s attorney, Bethuel Thusini, filed papers on Saturday arguing that his client’s constitutional right to a fair trial would be breached if the hearing were to proceed virtually on Monday.
His client cannot “in the present circumstances, be compelled to have his trial conducted on a virtual platform and/or in his absence”, he argued.
Thusini added that Zuma wished not only to be present, but also to give evidence in the hearing on the special plea his defence team entered in terms of section 106(1)(h) of the Criminal Procedure Act. Zuma’s application is two-fold: should he succeed in Downer’s removal, Zuma is asking that he be acquitted.
This came after Judge Piet Koen issued directives for the matter to be heard virtually, given the logistical complications of Covid-19 restrictions, the fact that most lawyers involved in the case would have to travel from Johannesburg, and that Zuma’s appearances have in the past attracted large crowds.
Koen noted that the hearing would involve only legal argument, but that he remained mindful of the fact that this was a criminal trial, where normally the presence of the accused would be required. However, Koen said he had requested that it be arranged that Zuma virtually follow proceedings from Estcourt prison, where he began serving his 15-month sentence for contempt 10 days ago.
Zuma is invoking section 35 of the constitution, which grants every accused the right to “a public trial before an ordinary court” and “to be present when being tried”.
Legal precedent confirmed that his absence, as an accused in a criminal matter, would constitute an irregularity, his counsel said.
Thusini filed the application after Zuma’s lawyer, Advocate Dali Mpofu wrote to Advocate Wim Trengove, who is representing the National Prosecuting Authority on the section 106(1)(h) application, to ask that the parties agree to a postponement, given the pandemic and the current threat of violence in the country.
In his affidavit, Downer notes that last week the Office of the Chief Justice, in response to threats against courts and judges, sent a letter to the heads of courts suggesting that judges may wish, as far as possible, to opt for virtual hearings.
“Although it has now abated, more than 200 people have lost their lives, and the threat of renewed violence remains,” the letter read.
Downer said the Covid-19 regulations were a form of subordinate legislation and, hence, made for a legally permissible exception to the provision of the Criminal Procedure Act that required the accused in a criminal trial to be present in court.
He added that a test run had been conducted at the Estcourt prison to give Zuma virtual access to Monday’s hearing and that it proved satisfactory.