The court strongly criticised last month’s statement by the department of correctional services that Zuma was a free man.
Jacob Zuma’s lawyers on Monday pleaded the former president’s sudden illness and the need for a postponement, pending his latest stab at appeal on an interlocutory matter, after he failed to appear at the Pietermaritzburg high court for the resumption of his corruption trial.
“There was a medical emergency that took place in the last few hours and the former president is being attended to,” Dali Mpofu informed Judge Piet Koen at the start of proceedings.
Mpofu said Zuma, who turns 80 on Tuesday, had waived his right to be present but agreed that the court could proceed to hear an application for postponement.
He is seeking a postponement, as per a supplementary affidavit filed at the weekend, pending a response from supreme court of appeal (SCA) president Mandisa Maya to an extraordinary petition in which he asks that she reconsiders the court’s dismissal of his direct application for leave to appeal the high court’s dismissal of a special plea that prosecutor Billy Downer lacks standing to prosecute him.
Mpofu submitted that the state’s objection to a postponement relied on two arguments — the prospects of the success of the petition and its insistence that Zuma was pursuing a Stalingrad strategy to delay standing trial on charges that have haunted him since 2005.
He said section 168 of the Criminal Procedure Act allowed the court to grant a postponement if necessary and expedient. This gave Koen a very narrow discretion to refuse, which fell away if one also had regard to the Superior Courts Act.
The discretion would consist of weighing the merits of the application to Maya to overrule the appellate court’s refusal to grant appeal.
Koen pointed out that he had already done so when he set out his reasons for refusing Zuma leave to appeal his ruling in October last year, dismissing the special plea challenging Downer’s standing.
But Mpofu said the Superior Courts Act also applied. His client’s approach to Maya was filed in terms of section 17(2)(f), and section 18, which stipulates that barring exceptional circumstances, a decision which is subject to an appeal or an application for leave to appeal, is suspended.
This meant Koen could not invoke his October ruling to pronounce on the merits of the application to the appellate court.
Downer countered that the discretion remained because the application was the latest ruse to delay the trial, filed in bad faith and the knowledge that it was doomed to fail.
“My learned friend has conceded that if mala fides were to exist, in other words were this court to be of the opinion, and this is the state’s submission, that indeed this application which is currently before this court is mala fides in the sense that it is part of the Stalingrad defence and it is meritless and it is but one of those defences which is raised continually without any prospect of success, by any proper reading of the law, and it is nevertheless proceeded with,” he said.
“It is done in bad faith, it is done to delay, so we take this submission very seriously.”
Mpofu objected to the argument, and the use of the term Stalingrad to denote needless delay, as insulting to his client.
Downer said if the petition to Maya suspended the SCA’s decision last month to deny Zuma leave to appeal his ruling, it did not suspend the initial high court ruling.
He cited a passage from the 2017 judgment of the appellate court in the so-called Spy Tapes matter — where it denied Zuma leave to appeal a high court ruling setting aside the 2009 decision to withdraw the corruption charges — in which Justice Mahomed Navsa borrowed a line from TS Eliot’s poem Little Gidding with its theme of constant renewal.
“Should a postponement be granted, today’s date of the 11th of April 2022, will be yet another recurrent end of the unending four years later, with any number more of recurrent ends in sight, without end, despite today’s date being agreed by all parties as the trial date.”
Koen asked the state and the defence to consider dates in late May when they would be available, should he be amenable to granting a postponement.
He said he would not be inclined to adjourn the trial with no appointed date for resumption, because it was in the interest of all parties that the matter proceeded at long last.
Zuma’s special plea sought to revive his contention that the National Prosecuting Authority’s (NPA) case against him was hopelessly compromised by political meddling. He argued that should he succeed in having Downer removed on the grounds of bias, it should follow that he be acquitted on all charges. Legal precedent was against him.
Last year, Zuma laid criminal charges against Downer for allegedly leaking confidential information to the media — a charge the NPA firmly denies — and has now signalled that he wants to launch a private prosecution on this basis. His lawyers have also written to National Director of Public Prosecutions Shamila Batohi to urge her to remove Downer from his case.
Zuma faces 12 counts of fraud, two of corruption, one of money-laundering and one of racketeering for allegedly taking bribes from French arms manufacturer Thales, through his former financial adviser, Schabir Shaik.
He was last year granted medical parole after he was jailed for contempt of court for flouting an order to testify before the Zondo commission on state capture The high court has ruled the decision to release him unlawful, because it ignored the stance of the Medical Parole Advisory Board, but Zuma has taken the judgment on appeal. His health condition is not known, but has at various stages forced delays in the arms deal trial.