The high court in Pietermaritzburg will on Wednesday pronounce on whether Jacob Zuma can appeal its dismissal of his special plea to have Billy Downer removed as prosecutor and be acquitted on the arms deal corruption charges.
It almost goes without saying Judge Piet Koen’s ruling will be a verdict on the success, at least in legal terms, of another instalment at what the state has termed Zuma’s Stalingrad strategy to stall a trial that has been in the making since 2004.
Should Koen deny Zuma leave to appeal, the former president could petition the supreme court of appeal (SCA) directly and there will then be another delay.
Zuma’s lawyers argued two weeks ago that their client would be severely prejudiced by the application of a procedural rule, raised by the state, that an appeal could only follow if he were convicted and sentenced by the trial court.
It was, advocate Dali Mpofu pleaded, a constitutional breach that added to the defence’s reservations about fair trial rights, and here he might have been hinting that the matter was not only likely to reach the SCA in Bloemfontein but ultimately the Constitutional Court in Braamfontein.
Mpofu said the case law allowed a wide enough interpretation of the term “convicted” for this to extend to Koen’s dismissal of Zuma’s special plea for acquittal, filed in terms of section 106 (4) of the Criminal Procedure Act. This would then get around the procedural rule and allow an appeal, he submitted.
The National Prosecuting Authority (NPA) has argued that Zuma’s reservations about fairness could be raised in the actual trial where he faces two charges of corruption, 12 of fraud and one each of money-laundering and racketeering.
But Mpofu said there was legal precedent for sparing an accused the strain, expense and restrictions of a criminal trial “by allowing an appeal to be pursued out of the ordinary sequence so as to obviate a trial or to substantially shorten it”.
He had also accused the court of prejudicing Zuma’s hopes of success on the special plea by not allowing oral argument on the alleged prosecutorial misconduct — and wider political wrangling at the NPA about Zuma’s indictment — that motivated the plea that Downer lacked the title to prosecute because he was not sufficiently impartial.
It was, again, a violation of Zuma’s right to a fair trial, he hammered.
Mpofu also argued that the SCA had erred in how it interpreted “title to prosecute” in Porritt and Another v National Prosecuting Authority, the relevant case law in this instance. Koen had reminded Zuma’s lawyers at the outset that, as a later court, he was bound by the SCA ruling.
Koen has to weigh whether there is anything in Zuma’s argument that could lead another court to arrive at a different conclusion on the question of oral evidence or a compelling reason why an appellate court may deviate from the principle laid down in Porritt in this particular instance.