Lawyers for the National Prosecuting Authority (NPA) on Monday urged the Pietermaritzburg high court to dismiss both former president Jacob Zuma’s last-minute bid to have a hearing on his acquittal application in his arms deal trial postponed, as well as the application itself.
“This application is Stalingrad season 27,” advocate Wim Trengove, for the NPA, said of Zuma’s plea in terms of section 106 (1)(h) of the Criminal Procedure Act to have state prosecutor Billy Downer removed from the trial for lack of impartiality.
Zuma, who attended the hearing via video link from Estcourt prison, is arguing that, should he succeed in securing Downer’s removal, it should follow that he be acquitted by the court on arms-deal charges in terms of the section 106(4) of the same Act.
He has argued in court papers that the NPA as a whole lacks standing to prosecute the case, in which he faces corruption, fraud, theft and racketeering charges for allegedly taking bribes from French arms-manufacturer Thales.
Trengove noted that in Porritt and Another vs the National Director of Public Prosecutions and Others, the courts accepted that if a prosecutor were removed, the NPA was allowed to appoint another to allow the trial to proceed.
By bringing the section 106(1)(h) application last month, Zuma is effectively staging a trial within a trial and seeking not only to cross-examine Downer but other figures he alleges politically conspired to manipulate his indictment.
But Trengove argued: “The NPA’s standing is beyond dispute.”
He described Zuma’s allegations of interference in the trial as a host of conspiracy theories debunked by capable courts, including in the former president’s failed bid for a permanent stay of prosecution.
“We submit that it is an abuse to rerun the same complaints again, this time under the guise of section 106 (h),” he said.
Firstly, Trengove submitted, Zuma’s objection to the application being heard on Monday on the basis that he could not testify from prison was flawed, because he had given no indication of what evidence he could give against Downer.
“So this is not a demand for Mr Zuma to go into the witness box … What he demands when he speaks of oral evidence is an opportunity to cross-examine Mr Downer and a variety of other state officials,” Trengove said.
“So it is a symptom of his recognition of his failure to make a case that he now resorts to a request for a referral to oral evidence. In the final analysis, this plea has got nothing to do with Mr Downer, but it is a demand that the court undertake an inquisitorial investigation of a conspiracy theory that has been thoroughly discredited, again and again and again.”
“That is the conspiracy theory on which the Mpshe decision was based,” he added, referring to the withdrawal of the charges in 2009, which paved the way for Zuma to become president. The charges were reinstated in 2018.
Advocate Dali Mpofu, for Zuma, objected that Trengove was arguing the merits of the application while the day’s sitting was meant to be confined to hearing the application for a postponement.
Trengove countered that to determine whether a postponement was necessary to allow Zuma to be present, one had to consider the merits of his request to testify in the section 106 application. He submitted that both applications were without merit and should be thrown out.
Zuma is arguing that his fair trial rights under section 35 of the constitution are being denied, and the provisions of the Criminal Procedures Act flouted, by the fact that Judge Piet Koen opted to hear the matter virtually, preventing the accused in a criminal trial from being present in court.
His lawyers filed the application for a postponement on Saturday.
The NPA supported Koen’s proposal to hear the matter virtually, given the level four Covid-19 lockdown currently in place, and a directive from the office of the chief justice in light of last week’s deadly unrest. Those people fomenting the violence have called for attacks on courts and judges.
Counsel for Zuma pleaded that a postponement of several weeks was necessary to ensure that he would be able to come to court, saying that although the violence linked to his imprisonment had abated, one could not guarantee that it would not flare up again in a week’s time.
When Koen asked if one week would suffice, advocate Thabani Masuku replied: “But what happens, for example, if next week there is another disturbance and we have to come back to you?
“I would suggest three weeks would be appropriate, My Lord.”
Koen said he would deliver a ruling on the postponement application at 10am on Tuesday.