Former president Jacob Zuma has filed an application to the constitutional court urging it to direct the supreme court of appeal (SCA) to reconsider its decision to deny him leave to appeal the dismissal of his special plea challenging Billy Downer’s standing as state prosecutor in his arms deal corruption trial.
In it, Zuma argues that SCA president Mandisa Maya misdirected herself when she dismissed an application he filed asking her to reconsider the court’s refusal to entertain an appeal and that the matter raises constitutional issues.
It was widely anticipated that Zuma would turn to the apex court, thereby further delaying the case where he faces one count of racketeering, two of corruption, one count of money-laundering and 12 of fraud for allegedly taking bribes from French arms manufacturer Thales.
In papers filed to the Pietermaritzburg high court, Zuma had said: “In all likelihood and irrespective of which party will ultimately find success in the SCA, and given the past recordal of these parties, the matter is very likely to end up in the constitutional court.
“This is common cause.”
Trial judge Piet Koen referred to Zuma’s intentions last month when he postponed the case to 15 August, saying: “So all we can do is sit out this process of further appeals or further applications along the path of appeals.”
Zuma reprises his argument, made to Maya, that in its ruling in March denying him leave to appeal, the SCA made reference to a singular application, when he had in fact filed four applications to challenge Koen’s dismissal of the special plea.
He said she too failed to acknowledge the multiplicity of applications when she dismissed his petition to reconsider and vary the order, filed in terms of section 17(2)(f) of the Superior Courts Act.
“The use of the singular in the order and the specific reference to one application for leave to appeal, when three other applications were presented for adjudication, lies at the heart of this application,” Zuma argues.
It means the fate of the other three applications remain “unknown to this day”, in clear violation of his fair trial rights, he adds.
The National Prosecuting Authority has dismissed Zuma’s claim that he filed several applications to the SCA as spurious, saying his legal team had itself referred to his approach to the court in the singular.
In his application, he insists that these were distinct but had simply been “consolidated for convenience”.
Zuma further contends that a decision on a reconsideration application must be appealable — while conceding that the default position is different — because a litigant exercises a significant procedural right when filing one.
“Therefore both sections 34 and 35 of the constitution are implicated.”
Hence the court has a duty to consider whether Maya was correct when she held that there were no exceptional circumstances which compelled her to vary the order of the SCA denying him leave to appeal. He argues that she was plainly wrong.
“There were ample exceptional circumstances and the decision to the contrary was occasioned by material misdirections of fact and law.”
One of these, he said, was the need to prevent “a grave and demonstrable injustice” inflicted by not allowing him to challenge the high court ruling, because Koen had not allowed him to lead evidence to show that Downer was woefully biased and the NPA as a whole was politically compromised.
It is a timeworn claim by Zuma that was dealt with by the high court in 2019 when it dismissed his application for a permanent stay of prosecution.
Nonetheless, he maintains in his latest application that evidence of criminality and misconduct on the part of the NPA in the management of his case needs to be tested in court. And he challenges Koen’s reluctance to allow an appeal on an interlocutory matter pending the outcome of the trial, saying if it succeeded on appeal the special plea would spell the end of the trial.
In his petition to Maya, he had made mention of the deadly July 2021 unrest, saying it was, at least in part, “traceable to a perceived erroneous and unjust judicial outcome”.
It is a plain reference to his brief incarceration for contempt of court for flouting an order to testify before the Zondo commission of inquiry into state capture. Zuma was released on medical parole in September.
The SCA will in August hear an appeal to the high court ruling that his release was granted unlawfully and that he should return to prison to serve the remainder of his 15-month sentence.