The Pietermaritzburg high court on Wednesday heard argument from the National Prosecuting Authority that there were no disputes of fact for it to decide in former president Jacob Zuma’s special plea to have state prosecutor Billy Downer removed from his arms deal corruption case.
Instead, advocate Wim Trengove told the court Zuma’s arguments consisted of conjecture he could not prove; hence, he was asking the court to allow an evidentiary inquiry as another shot at validating his political conspiracy theories around the charges that have haunted him since 2005.
“It is a process that is unheard of in our law,” Trengove continued, as the court wrapped up hearing argument on the matter, essentially a trial within a much-delayed trial.
“I realise that this is not a civil case, but it is a case brought on paper, and the way in which courts deal with cases on paper is born of common sense and not the civil nature of the claim,” Trengrove said.
This means that the courts firstly give the benefit of the doubt to the defendant, under the Plascon Evans rule; sometimes when there are discrete disputes of fact on which the outcome of the application depends, they may refer those for the hearing of oral evidence.
The rule, developed in 1984, says the relief sought by an applicant should be granted only if the facts stated by the respondent in its answering affidavit, read with the facts the respondent admitted in the applicant’s prayers, justify the order sought.
But it is the NPA’s argument that does not apply here. This then leaves the court to weigh whether to allow oral evidence on specific, contested issues.
“In this case there are no disputed issues, there is conspiracy theory and conjecture on the one hand and credible firsthand evidence on the other and that does not constitute a dispute,” Trengove submitted.
“One is reminded in this regard of the point our courts have frequently made that there is a big difference between conjecture and inference.”
He said Zuma acknowledged that his case did not hinge on a dispute of fact, but was instead asking for oral evidence as a way of trotting out anew, arguments that not only Downer but the NPA as a whole had allowed political meddling to taint the case against him irredeemably.
Zuma’s difficulty with the special plea brought in May on the basis that the lead prosecutor has abandoned impartiality, in terms of section 106 (1)(h) of the Criminal Procedure Act, is that his affidavit regurgitates timeworn claims that political manoeuvring around the timing of his initial indictment demanded the charges be withdrawn.
Trengove termed it a “cut and paste” of arguments rejected by the courts, most notably by a full bench of the Supreme Court of Appeal when it denied him a permanent stay of prosecution in 2019.
“Mr Zuma acknowledged, by implication, that the case does not hinge on any particular dispute of fact. He is not asking for any dispute of fact to be referred to oral evidence; he is asking for the whole case to start again… not only for it to start again, but for it to be determined by a procedure entirely foreign to our law of a judiciary initiated inquiry, to determine whether a special defence for which no prima facie case has been made can in fact be established,” Trengove said.
In reply, Zuma’s lead counsel, advocate Dali Mpofu, sought to rubbish Trengove’s contention that allowing oral evidence would be unprecedented, and said the special plea was, in fact, based on admissions by the NPA.
The court could rule on the first part of Zuma’s twofold application — Downer’s removal in terms of section 106(1)(h) — and in doing so decide the matter on the “admitted facts”, without resorting to oral evidence. Failing this, he said, he could refer the remaining issues to trial.
With this, Mpofu means the second leg of the application, that should Downer be removed, it should follow that Zuma be acquitted in terms of section 104 of the Criminal Procedures Act.
Mpofu said, contrary to Trengove’s submissions and “narrow interpretations” of both the case law and court rules in motion matters, Judge Piet Koen was amply at liberty to call for evidence.
He then turned to Porritt and Another v the National Prosecuting Authority, the most readily relevant case law on an application of this nature, which augurs badly for Zuma, particularly on his argument for acquittal should the first part of the application succeed.
Here the Supreme Court of Appeal upheld a high court ruling that removal of the prosecutor does not spell acquittal, but that the NPA is then allowed to appoint another prosecutor. Equally negative for Zuma’s plea, is the appeal court’s ruling that in the South African context an adversarial posture for a prosecutor was allowed.
But Mpofu begged the court to take a wider interpretation of the precedent, not confined narrowly to whether Downer held title to prosecute.
“When a prosecutor lacks these attributes … he or she has no title to prosecute … In the event that the word ‘title’ is interpreted narrowly to mean only formal statutory requirements for appointing a prosecutor … the court should extend its meaning to include the absence of independence and impartiality to fall within the mining of tilt to prosecute.”
Koen reserved judgment until 26 October. Should the application fail, it is expected that further argument will be led on Zuma’s fitness to stand trial, within the context of his recent medical parole, which interrupted a 15-month sentence of contempt for refusing to heed a Constitutional Court injunctive to testify before the Zondo commission looking into state capture.
Zuma in papers attempts to assail Downer for failing to object to political meddling by his superiors at the NPA at the time. It also makes much of the fact that the veteran prosecutor deposed of an affidavit during the so-called spy tapes case and wept at hearing of the level of abuse at a more senior level around the charges against the then aspirant president.
Trengove countered that instead of removal and alignment, Downer deserved a medal for attempting to resist meddling from his superiors. The application is widely expected to fail, leaving Zuma’s defence to pursue the alternative argument that his health renders him unfit to stand trial.