/ 11 April 2022

Zuma claims sudden illness as court hears successful bid for trial postponement

Safrica Politics Corruption Zuma
Former president Jacob Zuma. (Michele Spatari / AFP)

Jacob Zuma’s lawyers on Monday told the Pietermaritzburg high court the former president had suddenly fallen ill before they secured a seven-week postponement of his corruption trial, pending the outcome of his latest petition to the appellate court on an interlocutory application.

“There was a medical emergency that took place in the last few hours and the former president is being attended to,” Dali Mpofu informed Judge Piet Koen at the start of proceedings.

Mpofu said Zuma, who turns 80 on Tuesday, had waived his right to be present, but agreed that the court could proceed to hear an application.

He sought and won a postponement, as per a supplementary affidavit filed at the weekend, pending a response from supreme court of appeal (SCA) Judge President Mandisa Maya to an exceptional petition in which he asks that she reconsiders the court’s dismissal of his direct application for leave to appeal the high court’s dismissal of a special plea that prosecutor Billy Downer lacks standing to prosecute him.

Mpofu submitted that the state’s objection to a postponement relied on two arguments — the prospects of the success of the petition and its insistence that Zuma was pursuing a Stalingrad strategy to delay standing trial on charges that have haunted him since 2005.

He said section 168 of the Criminal Procedure Act allowed the court to grant a postponement if necessary and expedient. This gave Koen a narrow discretion to refuse, which fell away if one also had regard to the Superior Courts Act.

The discretion would consist of weighing the merits of Zuma’s grounds for appeal.

Koen pointed out that he had already done so when he set out his reasons for refusing Zuma leave to appeal his ruling in October last year, dismissing the special plea challenging Downer’s standing.

But Mpofu said the Superior Courts Act also applied as his client’s approach to Maya was filed in terms of section 17(2)(f). 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.

This meant Koen could not invoke his October ruling or his subsequent refusal in February to grant Zumn leave to appeal it, to pronounce on the merits of the application to the appellate court.

After a two-hour adjournment, Koen agreed that he was compelled to grant the postponement. 

He said the application for reconsideration of the SCA’s decision last month in which it denied Zuma leave to appeal, was patently part of a further appeal process, one specifically recognised in section 17.

“With due deference to the procedures and jurisdiction of the supreme court of appeal, it means that the procedure is suspended and that the trial cannot proceed and should today be adjourned,” he said.

“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 this was indeed such a case.

He said the Koen retained a discretion not to grant a postponement, because the application was the latest ruse to delay the trial, filed in bad faith and the knowledge that it was doomed to fail. 

“My learned friend has conceded that if mala fides were to exist, in other words were this court to be of the opinion, and this is the state’s submission, that indeed this application which is currently before this court is mala fides in the sense that it is part of the Stalingrad defence and it is meritless and it is but one of those defences which is raised continually without any prospect of success, by any proper reading of the law, and it is nevertheless proceeded with,” he said.

“It is done in bad faith, it is done to delay, so we take this submission very seriously.”

Mpofu objected to the argument, and the use of the term “Stalingrad” to denote needless delay, as insulting to his client.

Koen said if Zuma’s litigation record may have raised some suspicion that he filed spurious applications simply to delay the trial, the National Prosecuting Authority (NPA) has not fielded evidence of abuse of process in its latest papers in response. 

“The appeal process should be allowed to run its course,” he ruled, adding that it would result in an unfortunate but unavoidable and not unreasonable delay.

“Zuma has challenged many decisions adverse to him in the past, usually invoking the entire appeal process to the highest courts in this land and, in many instances, has been unsuccessful, which resulted in inevitable and unfortunate delays. 

“He is also on record, through previous counsel representing him, that he will continue to exercise all rights available to him. But the exercise of those rights, as much as they may be viewed with suspicion and distrust from certain quarters as resulting only in delays which only favour him, do not per se amount to an abuse of those rights.

“A finding of mala fides would require more, and clear, proof by the state, which I cannot make on the allegations in the present papers alone.”

Koen set 17 May as a holding date, pending Maya’s decision. Should the application be disposed of by that date, the trial would then resume on 31 May. The future progress of the case would be closely managed by judicial oversight. 

He said there was no reason to postpone the trial sine die, because it was “much overdue” and the interest of justice demanded that it proceed. Given the delay forced by Zuma’s approach to Maya, it was now unlikely that the trial would conclude in the third term of the high court and Koen set it down for the fourth as well.

Zuma’s special plea sought to revive his contention that the NPA’s case against him was hopelessly compromised by political meddling. He argued that, should he succeed in having Downer removed on the grounds of bias, it should follow that he be acquitted on all charges, but legal precedent was firmly against him. 

Last year, Zuma laid criminal charges against Downer for allegedly leaking confidential information to the media — a charge the NPA firmly denies. Leaving no stone unturned, he has since signalled that he plans to launch a private prosecution on this basis, and his lawyers have also written to national director of public prosecutions Shamila Batohi to urge her to remove Downer from his case.

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. 

Zuma was last year granted medical parole not quite two months after he was jailed for contempt of court for flouting an order to testify before the Zondo commission on state capture.

The high court has ruled the decision to release him unlawful, because it ignored the that of the Medical Parole Advisory Board, but Zuma has taken the judgment on appeal. His health condition remains a mystery, but has at various stages forced delays in the arms deal trial.

His eponymous foundation said late on Monday that he had been admitted to hospital for medical tests