When Jacob Zuma’s arms deal case resumed this week, his counsel said the former president’s health woes were not relevant, but it was the elephant in the courtroom, dwarfing legal argument that Billy Downer be removed as prosecutor and the former president acquitted.
Advocate Dali Mpofu SC decamped from his position earlier this month that should the state and the defence disagree on whether Zuma is fit to stand trial, there would be oral arguments on the matter. Alternatively, should his health improve, he had said, the court would use Tuesday and Wednesday to hear his special plea that Downer lacked the title to prosecute Zuma because he had displayed a lack of impartiality in the almost 20 years he has worked on the case.
Sign up for our free daily elections email
This is where we’d usually stop you and ask you to pay to read this story, but this week M&G is free so that everyone can access the information they need in the run up to the municipal elections on 1 November. Find out more here.
Come the day, his client was absent from court for the stated reason that he needed to remain close to his doctors in Gauteng, but Mpofu argued that the plea be heard nonetheless and the matter of his health be dealt with later, though only in the event that the plea failed.
He objected strenuously to the state seeking to call three witnesses to hand in medical records presumably relating to the controversial decision a fortnight ago by correctional services commissioner Arthur Fraser to grant Zuma medical parole.
These were not relevant now because the medical issue was not before the court, Mpofu said.
Wim Trengove, SC, for the National Prosecuting Authority (NPA), countered: “I don’t know how my learned friend can say the issue has not arisen … Mr Zuma is not here today, attendance in court is not optional, it is obligatory.
“What is wrong with him and why isn’t he here?”
Trengrove said that the prior agreement was that should Zuma be unable to attend, evidence would be heard as to the reasons.
“Instead Mr Zuma sent a message that he would not come but that we could continue with his trial.”
The defence has ample reason to delay the argument on Zuma’s health. First, medical experts nominated by the state to give a second medical opinion disagree with the submission by military doctors that he is not fit to stand trial.
Second, Zuma now faces the further legal bother of court applications by the Democratic Alliance, the Helen Suzman Foundation and AfriForum to review Fraser’s decision to grant him parole, cutting short a 15-month prison sentence for contempt of court incurred in his running battle with the Zondo commission on state capture.
The NPA had subpoenaed Fraser, acting provincial commissioner of correctional services Kenneth Mthombeni, and Precious Radebe, the head of the Estcourt Correctional Centre where Zuma was held before he was admitted to hospital in August, as witnesses in Pietermaritzburg.
Advocate Muzi Sikhakhane, representing all three, said his clients had been called at such short notice that he had not been able to consult them properly.
The witnesses felt anxious about being asked for documents that belonged not to their department but to military intelligence because it related to a former head of state.
For this reason, they could not readily submit records without consultation, even if Judge Piet Koen proposed that he would keep these under lock until they became central to any argument on the continuation of the trial.
Mpofu was more blunt: “Those documents can only relate to one thing, which is the medical parole issue … There is no other logical reason that Mr Fraser and Mr Mthombeni can be asked to bring medical records.
“So it is a new terrain altogether that is being introduced about medical parole. That just exacerbates the question of relevance.”
Trengove stressed that correctional services’ records would come into play because of the disagreement between the two medical teams on Zuma’s fitness to face trial.
This was the case after “collegial and open” consultations between the military doctors and 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, on September 3, two days before Zuma was paroled.
Zuma’s doctors finally gave Sarkin further records last week, but the professor’s view remained unchanged, according to a supplementary affidavit filed by Downer.
“Now, we are not asking you to resolve that issue today, but we say these documents are relevant to that issue. We ask merely that the witnesses be called up and hand the documents to your registrar,” Trengove said.
Mpofu prevailed, in part because Koen is desperate, as he put it, for the corruption trial to begin. The special plea is a trial within a trial, where he led an argument that apart from Downer having turned the case into a personal crusade over the years, he had twice blotted his copy book in recent weeks.
The first instance was allowing Andrew Breitenbach, for the NPA, to give the media access to an affidavit, which resulted in a letter from a medical doctor merely stating that Zuma needed urgent treatment for a medical trauma. The state counters that the document was public after being filed to court.
The second was sending the state’s medical experts to examine Zuma in August. Again, the state denies any malice, saying there was no examination and would be none without the accused’s consent.
Mpofu tried to refute the state’s argument that the special plea is a crude, second stab at a stay of prosecution, which Zuma was denied by a full bench of the supreme court of appeal.
He said the principle of res judicata did not disqualify his plea, as neither the stay application nor the Spy Tapes case, though both may have heard arguments on the misconduct of the NPA in general, “dealt with the fitness of Mr Downer to prosecute this case”.
Trengove conceded that “res judicata proper cannot be raised in this case proper because the claim in the case is not the same” but added that the arguments were cut and paste from those in the stay application.
“This is a complaint about an unfair trial dressed up as a section 106 (1)(h) plea. Why dressed up? Because the unfair complaint has been run and litigated and lost. It was lost in the full bench judgment. It was lost when Mr Zuma abandoned his appeal to the constitutional court.”
The plea harks back to political meddling by Downer’s superiors around the timing of Zuma’s initial indictment in 2005, and he argued that if the prosecutor was not directly implicated he should have held off given the climate at the institution. “He has known that the NPA is a crime scene and essentially he should be saying no, I cannot prosecute this case until you have purged yourself of these problems.”
Trengove said Downer deserved an apology for being maligned and a medal for resisting impropriety. “He was the one who stood up for justice and truth every time, stood up to his bosses every time.”
The legal fraternity sees the twofold special plea as a long shot, mostly aimed to politicise the matter further. Zuma is asking the court to acquit him, in terms of section 104 of the Criminal Procedure Act, should he succeed in the first part. But legal precedent points the other way.In Porritt and Another v the National Prosecuting Authority, the SCA upheld a high court ruling dismissing argument by the accused that the title to prosecute was fundamental to the validity of a trial, and in its absence acquittal should follow.