The corruption trial of former president Jacob Zuma has been further delayed because a reconsideration application he filed to supreme court of appeal president Mandisa Maya more than a month ago, which must be decided before the matter can resume, has not yet reached her desk.
This emerged in the Pietermaritzburg high court on Tuesday, which was the holding date for the state and the prosecution to hear the status of the application, with a view to the trial getting under way on May 31.
Judge Piet Koen expressed surprise, before duly setting a new holding date of August 1, with 15 August the new tentative date for the trial to resume.
“Normally these matters are dealt with fairly quickly,” he said of the reconsideration application.
“Did she perhaps confirm or can you confirm that as much as it was filed … the application was filed with the registrar, we’ve got the stamp … was it confirmed that it’s made its way to the desk of the president?”
State prosecutor Billy Downer replied that he was told on Monday that it had not.
“The last message I received from the registrar was that it is on its way to the president. The reason for the delay is unclear to me. It is not our mandate to interrogate that.”
Zuma filed the application to Maya in terms of section 17 (2)(f) of the Superior Courts Act after the appellate court denied him leave to appeal Koen’s dismissal of a special plea in which he argued that Downer lacked standing to prosecute him.
His senior counsel, advocate Dali Mpofu, then argued that the trial must be placed on hold as section 18 of the act stipulates that, barring exceptional circumstances, a decision that is subject to an appeal or an application for leave to appeal, is suspended.
Koen ruled that he was compelled to grant a postponement.
“It does not seem to me that this court has much of a discretion, if it has one at all, to deny those appeal rights statutorily ordained, unless in the clearest of cases where there is an abuse of rights.”
Downer had argued that the application marked such an abuse because it was filed in bad faith and the knowledge that it was doomed to fail, purely to delay the trial.
But Koen said the objection that it was a so-called Stalingrad ruse could not be sustained because the state had not fielded proof of mala fides.
On Tuesday, the court resigned itself to the fact that there may be more delays still. Koen reiterated he was bound to wait for Maya’s decision, but said it was likely that should it not go Zuma’s way, he would then approach the constitutional court.
Moving the holding date back to August would allow time for that eventuality to unfold as well.
“The reality is that we don’t have a result, and we have to await the result … I assume without putting her on terms that some decision or determination will be made pretty shortly.”
“Obviously if it is granted, then we’re into the supreme court of appeal and some form of appeal there. If it has been refused, then the indication has been that there will be an application for leave to appeal to the constitutional court.”
Downer agreed to the new date but said the state was “dismayed” with the length of the postponements in the matter.
Koen said he too was concerned at the delays and did not believe there was substance to Zuma’s appeal but he was bound by the law.
“So all we can do is sit out this process of further appeals or further applications along the path of appeals. I can’t affect that in any way, obviously it must just be pursued within the time limits and the rules of court.”
If Maya dismisses Zuma’s application, he will have 15 days to file another with the apex court.
All parties agreed that the trial would now provisionally be set down to run at least into the second term of 2023.
It has been in the making since 2005, when Zuma was first charged with corruption relating to the country’s 1990s arms procurement programme.
The former head of state 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 (then Thint), through his former financial adviser, Schabir Shaik.
He is currently appealing a high court ruling that his release from prison on medical parole last year, two months after he was jailed for contempt of court for flouting a court order to appear before the state capture inquiry, was unlawful and that he must serve the remainder of his 15-month sentence.
But no date has been set for the supreme court of appeal to hear the matter after communication from the respondents pleading urgency reportedly failed to reach Maya’s office.