Former president Jacob Zuma has petitioned the supreme court of appeal (SCA) for leave to appeal the Pietermaritzburg high court’s dismissal of his special plea argument that advocate Billy Downer lacks the title to prosecute him for arms-deal corruption.
The two-part plea, in which Zuma also moved for acquittal on all charges, was struck down by Judge Piet Koen in October last year. Zuma then sought leave to appeal in the high court; this application was denied on February 16.
A direct approach to the appellate court was widely expected, but it arrived just before the window period for filing closed.
In his court papers, Zuma avers that Koen erred by relying on the SCA’s judgments in Ndluli vs Wilken MO and Porritt and Another vs National Prosecuting Authority and Others as binding authority for dismissing his special plea.
He also claims that Koen misread the rationale for the ruling reached in Porritt, and that it did not, on the facts, serve as binding precedent in his plea because the applicants did not rely on section 106(1)(h) of the Criminal Procedure Act to argue for the removal of a prosecutors in the matter on the basis of bias.
“Porrit was a case in which section 106 (1)(h) challenge to the prosecutors’ title to prosecute had been unsuccessful, but the prosecutors were removed on a different basis, namely on the perception of bias based on section 35 of the constitution.”
In contrast, he relies squarely on section 106 (1) (h) of the Criminal Procedure Act and seeks a wide interpretation of the term “title to prosecute” to ensure that Downer is disqualified or removed from his case. Zuma also contends that he is the first person to frame an application in this manner and, therefore, Koen could not claim he was bound by precedent.
“The accused contends for an expanded constitutional or section 39(2) based interpretation of the phrase title to prosecute so as to encompass conduct on the part of a prosecutor whose impact is the dismissal of the accused’s fair trial rights.
“That question is being raised for the first time in our courts. I was certainly never raised in Porritt.”
In his ruling in February, Koen said the special plea compelled him to consider 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, adding pointedly that he was not asked to consider the removal of Downer based on any threat to Zuma’s fair trial rights.
Porritt authoritatively answered the question.
“That unanimous finding by the SCA disposed of the word ‘title’ having a wider meaning to include a lack of impartiality or a lack of independence, for whatever reason and specifically those complained of by Mr Zuma.
“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.”
But Zuma turns to semantics in his affidavit to the SCA to argue that if legislators had meant “title to prosecute” to mean no more than written authority to lead a case, they would have said so.
“This is an absurdity because, had that been the case, the legislature would have used the words ‘authority to prosecute’ instead of ‘title to prosecute.”
Besides, he adds, just how nonsensical a narrow interpretation is becomes clear in the wider context of the Act because it confers on the accused the right to demand acquittal in case lack of title is established. The mere absence of a letter of authority could not conceivably establish such a right.
Zuma has argued that Downer had termed the case into a personal crusade.
In part two of his special plea — brought in terms of section 106 (4) of the same Act — he further argued that, should Downer be removed, acquittal must follow because the National Prosecuting Authority (NPA) as a whole was incompetent to pursue the graft charges against him, rendered so by, inter alia, because of political wrangling around the timing of his initial indictment.
Here, too, he failed, and is seeking to appeal, arguing that Koen failed to give a “proper and purposive interpretation” of this section.
Beyond this, he argues that the court failed to understand that section 108 of the act allows for a trial within a trial to decide a special plea, and that this implies allowing oral evidence to be adduced.
And he seeks to challenge the high court’s stance that an appeal, prior to the completion of the trial on the charges, should be allowed only if it would lead to the prompt resolution of the main issues between the parties.
That issue, Koen said, was the guilt or otherwise of Zuma.
The former head of state faces one count of racketeering, two counts of corruption, one count of money-laundering and 12 counts of fraud for allegedly taking bribes, via his former financial adviser Schabir Shaik, from French arms manufacturer Thales, which is accused number two in the matter.
Koen last month ordered that the trial resume on 11 April.
His tilt at acquittal by way of a special plea is widely seen as an attempt to play for time and win public sympathy by reviving his complaints that the charges were contrived by his political enemies in a novel application.
Advocate Wim Trengove, for the NPA, sardonically termed it “Stalingrad season 27”.
The high court previously dealt with his claims of political influence when it dismissed his application for a permanent stay of prosecution in 2019. The SCA denied him leave to appeal that decision.