Judge Piet Koen on Tuesday postponed former president Jacob Zuma’s arms deal trial to August 10, when he will hear his special plea for the removal of the state prosecutor and his eventual acquittal.
Koen set the hearing down for 10 to 13 August, following an application from Zuma’s counsel at the weekend in which they claimed his fair-trial rights would be compromised because the matter was due to be heard virtually because of the Covid-19 pandemic and the past week’s deadly unrest.
In light of threats to target courts and judges, a directive was issued by the office of the chief justice last week that wherever possible, court proceedings should be held virtually.
Having granted the postponement, Koen said he would rule on 10 August on Zuma’s demand for a declaratory order that a virtual hearing on the special plea would be inconsistent with section 35(3) of the constitution.
But Koen said the decision to proceed virtually would apply “unless revoked or revised” following submissions from the parties and correctional services as to how “prevailing circumstances” may influence the court’s considerations in this regard.
“The parties and the department of correctional services are each invited to provide a list, in point form and not exceeding two pages of double-spaced typing, of any considerations and/or prejudice which might result, which they consider relevant to the decision whether the directive should be revoked or revised,” he said.
All parties have until 2 August to file their submissions and Koen will communicate a decision on whether the hearing will proceed virtually or physically at the Pietermaritzburg high court.
Zuma’s lawyers argued on Monday that it would be an unjustified breach of the provisions in both section 35 of the constitution and the Criminal Procedure Act to bar an accused in a criminal matter from being present in court.
For the second day in a row, the former president followed the court proceedings from the Estcourt Correctional Centre where he began serving his 15-month sentence for contempt of court 12 days ago.
Zuma has applied to give oral evidence in the hearing on his plea, in terms of section 106(1)(h) of the Criminal Procedure Act, to have advocate Billy Downer removed as the prosecutor in the arms deal matter for allegedly having abandoned the requisite impartiality.
Zuma’s counsel have argued that he would be compromised if this was done from custody, rather than in court.
The National Prosecuting Authority is opposing the bid for Downer’s removal, with advocate Wim Trengove SC on Monday terming it “Stalingrad season 27” in sardonic reference to Zuma’s relentless recourse to every possible legal mechanism to sidestep the corruption charges that have haunted him since 2005.
Trengove said Zuma’s papers gave no indication of what evidence he could usefully offer the court. Rather, he was seeking to cross-examine Downer so as to air once again his theory that the charges are a political conspiracy.
His application goes beyond challenging Downer’s title to prosecute, to claiming that the National Prosecuting Authority itself is too compromised to bring charges against him and demanding acquittal in terms of section 106(4) of the Criminal Procedure Act.
Legal precedent is not in his favour, and sceptics see the application as a delaying tactic while Zuma’s political supporters seek to create conditions that augur against his prosecution.
The former president faces one count of racketeering, two counts of corruption, one count of money laundering and 12 counts of fraud for allegedly taking bribes, via his then financial adviser Schabir Shaik, from French arms manufacturer Thales.
R4.1-million was allegedly drip-fed to him in 791 payments from Shaik, a sum that pales in comparison to the money that flowed in the state capture scandal.
Zuma was jailed for flouting a Constitutional Court order that he comply with summons to give evidence before the Zondo commission on his alleged role in state capture during his tenure as president, triggering a wave of violence last week that the government termed a failed insurrection.
He has asked the apex court to rescind its judgment, while those in his corner last week said they are demanding not only his release from prison but the withdrawal of the arms deal charges.
The Constitutional Court has reserved judgment on the rescission application.