Three medical experts appointed by the state concluded that former president Jacob Zuma is fit to stand trial on the arms-deal corruption charges he faces, according to a supplementary affidavit filed by state prosecutor Billy Downer to the Pietermaritzburg high court.
The conclusion was reached on 16 September by Professor Ian Andew Sarkin, assisted by the heads of gastric surgery and nephrology at Pretoria’s Steve Biko Academic Hospital and the University of Pretoria.
It was informed by discussion, which Downer described as “collegial and open”, on 3 September between the team nominated by the National Prosecuting Authority (NPA) and the doctors who have been treating Zuma since the early days of his imprisonment for contempt.
The NPA’s experts were not allowed to examine Zuma, but were promised his medical records within days of the meeting.
‘Fit to stand trial’
After eventually receiving further records from surgeon general Zola Dabula of the South African National Defence Force almost a fortnight later, Sarkin confirmed his initial opinion.
“He said he remained of the view that the first accused is medically fit to stand trial,” Downer wrote.
Zuma was controversially granted medical parole on 5 September, with Downer noting that the NPA had no inkling that this was on the cards.
It emerged in the high court on Tuesday, as his graft trial resumed, that he has since been released from the Pretoria hospital where he received treatment for an undisclosed ailment for weeks.
But Zuma was absent from court. His chief counsel, advocate Dali Mpofu SC, informed Judge Piet Koen that his client’s precarious health dictated that he remain close to his doctors in Gauteng.
The day’s proceedings began with wrangling between the state and the defence on medical records submitted with a view to obtaining parole, with Mpofu strenuously arguing against the risk of confidential documents “flying around”, in particular given the various legal challenges underway to the correctional services commissioner Arthur Fraser’s decision to release Zuma.
Koen countered that there was no risk as he would keep the records under lock and key, and that moreover the defence was advancing medical grounds for Zuma’s failure to appear at court.
‘Why isn’t he here?’
Advocate Wim Trengove, for the NPA, insisted that objections to the request for medical records were misplaced because Zuma’s health was again at issue given his absence. And the defence’s objections once again rendered the court unable to reach a final conclusion on the matter.
“What is wrong with him and why isn’t he here?” Trengrove asked.
But Mpofu argued that the matter of Zuma’s health was not of immediate concern to the court and, therefore, further medical records need not be submitted to Koen, because he was not arguing for a postponement.
Instead Zuma wanted the court to proceed to hear his special plea in terms of section 106 (1)(h) of the Criminal Procedure Act to have Downer removed from the case for alleged lack of impartiality.
His fitness to stand trial would come into play only should the application fail, he added.
Here Mpofu departed from his argument in recent months that Zuma would be compromised by not being physically present, in those instances because proceedings were conducted virtually.
He said his client had waived his objections that this impeded consultation with his legal team and was anxious for the matter to proceed lest he be “insulted” by further accusations of stalling his trial with Stalingrad tactics.
Koen agreed that the court proceed to hear argument in what is, effectively, a trial within a trial.
Mpofu submitted that the history of the case, in which Zuma was first charged in 2005, was replete with instances in which Downer went overboard, and fraught with political meddling by his colleagues and the Mbeki administration as a whole.
“We are not saying Mr Downer is the only person who is disqualified, he is just the only one who happens to be here … All of them are disqualified — because they are all mired in the mud that is surrounding this matter.”
In part two of the plea, the defence argues that if the court accepts that Downer lacked the title to prosecute, their client qualifies for acquittal under section 106(4) of the same act.
The case law in applications of this nature is slim and not in Zuma’s favour.
In Porritt and Another vs the NPA, the Supreme Court of Appeal upheld a high court dismissal of argument by the accused that the title to prosecute was fundamental to the validity of a trial, and once the prosecutors were removed, they were entitled to acquittal in terms of the section 106(4).
The court had ordered that in such an instance, other prosecutors be appointed.
Mpofu contended that the SCA erred, and Koen reminded him that the high court was bound by precedent.
Zuma’s arguments on meddling have been heard and rejected by court in the course of his bid for a permanent stay of prosecution. But Mpofu tried to lay more fault at Downer’s door, saying he had in recent weeks behaved unethically by authorising the release of an affidavit, with a medical note attached, to a news reporter.
Furthermore, he said the NPA had made itself guilty of “undue harassment” by sending doctors of its own nomination to examine Zuma. In his affidavit, Downer denies that seeking to arrange with correctional services and the military in August for Sarkin to examine Zuma was unlawful conduct, saying it was in line with Koen’s directive that the state was entitled to a second opinion.
But Mpofu colourfully insisted that a further directive from the court was needed before the NPA “sent their vultures” to Zuma.
“The mere threat to conduct such an examination prematurely with no legal title to do so … That was prosecutorial misconduct of the first order.”