PIETERMARITZBURG, SOUTH AFRICA - APRIL 11: State advocate Billy Downer with advodcate Dali Mpofu at Pietermaritzburg Magistrate?s Court on April 11, 2022 in Pietermaritzburg, South Africa. Former President Jacob Zuma and Thales face corruption, fraud, and money laundering charges over a $2.5bn arms deal in the late 1990s. (Photo by Gallo Images/Darren Stewart)
Former president Jacob Zuma has cautioned in court papers that it is highly likely his bid to avert prosecution on the arms deal corruption charges that have shadowed him for close to two decades will land in the constitutional court.
“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,” he noted in papers filed to the Pietermaritzburg high court.
“This is common cause.”
He therefore argued that his trial should be postponed pending either a positive response to his petition to the supreme court of appeal (SCA) president, Mandisa Maya, for leave to the dismissal of interlocutory application, or the outcome of an eventual approach to the apex court.
In his petition to Maya, he makes ominous mention of the deadly July 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.
In October, the Pietermaritzburg high court dismissed Zuma’s application for an order that National Prosecuting Authority veteran Billy Downer lacked legal standing to prosecute him. The special plea was twofold, with Zuma arguing that should Downer be disqualified, his acquittal on all charges should follow.
Hence his determination to fight all the way to the constitutional court leaves little doubt that he is intent on another stab at having the charges set aside, two years after withdrawing an application for leave to appeal after the SCA refused him a permanent stay of prosecution.
In his papers, Zuma stressed that the issues he continues to raise relating to whether Downer legally had title to prosecute may be dispositive of the trial and warned that to proceed before these were settled would be in breach of his rights in terms of sections 34 and 35 of the constitution.
Zuma fell ill on the eve of the resumption of his trial in the Pietermaritzburg high court, leaving his counsel to argue for a postponement in his absence.
Judge Piet Koen agreed to a seven-week postponement, not the indefinite delay his lawyers sought.
Last month, Zuma was denied leave to appeal by the SCA but argues in his papers that the appellate court made a “gross error” in dismissing his application, and that fresh evidence obliges Maya to reconsider the decision.
His first stated reason is, as the NPA put in its papers, “grammatical”. He alleges that he brought four petitions before the appellate court and it erred in dismissing it as a singular “application” and its decision was rendered vague and ambiguous.
The state describes this as spurious, given that on several occasions prior Zuma had also referred to a single application and seemed to alternate between the singular and plural.
Zuma further argues that the apparent confusion on the number of applications he filed constitutes exceptional circumstances that merit the reconsideration of the matter by Maya and cannot be overlooked for the sake of reaching finality.
The NPA counters that Zuma’s reading of the order is done with the deliberate intent of creating an error “where there is none”.
Finally, Zuma takes issue with the state’s reference to his legal strategy as Stalingrad tactics, designed to delay the trial. In reply, Downer says that this week’s application for a postponement pending the outcome of the application he has filed, and another he may file if unsuccessful, is a continuation of the same.
“The current application is a continuation of the Stalingrad defence,’’ Downer said.
Zuma has written to the national director of public prosecutions, Shamila Batohi, to demand that she withdraw Downer from the trial and submits that this is another reason to postpone the trial, pending a final decision.
Downer counters that this too is a continuation of the Stalingrad strategy.
“It is submitted that it is a hallmark of the Stalingrad defence to continue to pursue in a different form allegations that have previously been found to have no merit, thus rendering the continued attacks ever more pointless, other than to delay and avoid the trial court determining the issues according to fair trial principles.”
On Monday, Koen granted a postponement until 31 May, saying he was obliged to do so by the provisions of the Superior Courts Act because Zuma’s exceptional approach to Maya fell under section 17(2)(f) of the law.
“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,” Koen said.
He could not find clear evidence in papers that, in this instance, the application for a postponement was filed in bad faith with the only aim to delay the trial.
Zuma was released from hospital on Tuesday, his 80th birthday, after undergoing medical tests, according to his foundation.