The high court in Pietermaritzburg on Wednesday denied former president Jacob Zuma leave to appeal its dismissal of his special plea that Billy Downer lacked the standing to prosecute him for corruption and that he be acquitted on the charges that have shadowed him for nearly two decades.
Judge Piet Koen said the application must fail as it lacked a reasonable prospect of success and ordered that the trial of Zuma and accused number two, French arms manufacturer Thales, continue in April.
“Where that leaves us is that the criminal trial should now resume,” he concluded. “We shall reconvene for the trial to resume at 10am on the 11th of April.”
Koen stressed that the special plea entered in terms of section 106 (1) (h) of the Criminal Procedure Act compelled him to consider primarily whether Zuma’s complaints of bias, if they could be established, would result in Downer, and by extension the state, lacking the title to prosecute the matter.
“That was all, nothing else,” he said, noting that he was not asked to consider the removal of Downer based on any threat to Zuma’s fair trial rights.
The issue turned on the interpretation of the phrase “title to prosecute”, Koen said, and here he was bound by the relevant case law.
“That the term ‘title to prosecute’ refers to the person prosecuting, not the state, has been the law binding on this court since at least the decision in Ndluli v Wilken MO. No doubt arises in that regard.”
He said the second issue, that of what is meant by title, was determined in the Porritt and Another v National Prosecuting and Others.
The ruling by the supreme court of appeal (SCA) made plain that complaints about lack of impartiality, whatever the grounds may be for such an alleged lack, do not affect the title to prosecute for the purposes of section 106 (1)(h).
Legal precedent was also fatal to part two of Zuma’s plea — in terms of section 106 (4) of the same Act — where he argued that should Downer be removed, acquittal must follow because the National Prosecuting Authority as a whole was incompetent to pursue the graft charges against him.
Zuma’s counsel had argued that the appellate court had erred and that the high court should depart from the narrow reading of the Act, but Koen stressed that he was bound by it.
“The decisions of Ndluli and Porritt are both decisions of the supreme court of appeal and binding on this court, even if they were wrongly decided, which I’m not persuaded they were. Those issues are dispositive of the special plea. They are also dispositive of the prospects of success of the application for leave to appeal.”
He said those rulings also put paid to several other applications the defence pursued concurrently with the bid for leave to appeal.
Dealing with Zuma’s objection to the state’s argument that the law prohibited an appeal being pursued in a criminal trial prior to the verdict, Koen said there was no reason in law to deviate from it, nor did common sense suggest he should.
“This is an issue of some complexity in the light of changes to legislation. My judgment commences by, with reference to numerous authorities, reiterating the undesirability of piecemeal litigation where decisions and finding made during a trial are taken on appeal before the completion of the trial as these invariably result in delays and hence drawn-out trials to the detriment not only of an accused but also any co-accused, and also the general interest of the public.”
Koen said that in his view an appeal should only be allowed prior to completion of the trial if it would lead to the prompt resolution of the main issues between the parties.
“I conclude that if an appeal against the main judgment [on the special plea] was to be entertained at this stage of the proceedings, it would not lead to a just and prompt resolution of the real issues … the real issue being the guilt or innocence of Mr Zuma.”
This did not mean, he added, that Zuma could not ultimately appeal the dismissal of the special plea, but simply that he could not do so now.
“The trial must first be completed.”
Advocate Dali Mpofu had argued at length that it would be unfair to put Zuma through a trial, if it may all be rendered null and void if he were to appeal successfully on the special plea later.
But Koen countered that if Zuma were to be acquitted on the criminal charges of corruption, fraud, racketeering and money-laundering, the time spent on such an appeal would have been wasted.
“Resorting to appeals prior to the finalisation of trial, result in delay, fragmentation of the process and the determination of issues based on an inadequate record.”
Turning to Zuma’s argument that the special plea should have been dealt with on a trial basis where he could call and cross-examine witnesses on his long-held concerns over political interference in his prosecution, including the possible involvement of foreign intelligence agencies, Koen said it was misdirected in law.
“The grounds of complaint raised by Mr Zuma cannot as a matter of law and binding precedent, even if his complaints were assumed to be correct, be decided under the rubric of a special plea as raised in terms of section 106 (1) (h).”
Lengthy oral argument and cross-examination of witnesses on issues that may never even be raised in the actual trial would have been superfluous, Koen said.
It was in the interest of justice that the matter be decided on affidavit, he said, and no argument was raised that he acted in bad faith when he decided to deal with it in this manner, the judge said.
It is possible that Zuma will now petition the SCA directly for leave to appeal. The special plea has been widely seen as an attempt by Zuma to play for time and score points in the court of public opinion by reviving his complaints that the charges were contrived by his political enemies in a novel application.
The high court previously dealt with these when it dismissed his application for a permanent stay of prosecution in 2019 and the SCA months later denied him leave to appeal that decision.