Former president Jacob Zuma’s reinforced legal team on Wednesday laid out the terms for a politicised trial within a trial with his acquittal as the aim, as he finally pleaded not guilty to all corruption charges relating to South Africa’s arms deal two decades ago.
A special plea for the removal of state prosecutor Billy Downer, angled on his alleged bias and wilful blindness to political interference, forced a postponement till July 19.
The delay is necessary, Downer told the high court in Pietermaritzburg, to allow the defence time to file supporting documents not attached to its application for his removal.
“And might I just mention My Lord, one further problem, and that is that we have pointed out to my learned friends for accused number one, that their papers in certain respects are insufficient and incomplete, so we have given them a list of what we think is incomplete and how it needs to be supplemented.
“So that has still not been done,” he said, adding that an agreement has been reached for this to be filed next week.
The July return date will see the court hear argument on the defence’s submission that the state prosecutor ignored red flags regarding meddling by the Mbeki administration in his indictment and that the former president will therefore not receive a fair trial.
Zuma’s new senior counsel, Dali Mpofu, informed the high court that the defence foresaw that there might be a need to hear oral testimony if disputes of fact arose regarding points raised in the plea.
“We want to place on record that it is our firm view that some of the disputes … will require some element of oral evidence, My Lord,” he warned Judge Piet Koen.
In the likely event that this happens, it will mean more time spent on the civil application, filed in terms of section 106(1)(h) of the Criminal Procedure Act, before the court hears 16 charges against Zuma and four against French arms manufacturer Thales in the criminal trial.
Downer told the court the state disputes the allegations Zuma and his counsel raised as to why he holds no title to prosecute the case on which he has worked since 2003.
“We do not at all agree with what has been said and we will in due course dispute it. I am in a bit of an invidious situation because I am the target of the attack and my counsel is not here.”
The state has briefed a team of five counsel, headed by Wim Trengove SC, to oppose the application which National Prosecuting Authority spokesman Sipho Ngwenya disparaged as consisting of “recycled” allegations.
“It is quite a frivolous plea … It is clear that the tactic is once again to delay,” Ngwenya said, adding that much of the arguments raised did not directly concern Downer.
“Virtually all the things that have been raised, purportedly about advocate Downer, have nothing to do with him. It is conspiracy theories that have nothing to do with him.”
But Mpofu and Thabani Masuku insisted on quoting at length from Zuma’s 141-page affidavit filed last week in support of the plea, ostensibly to read the main points of his argument into the court record.
The sections they quoted impugn Downer as having become a witness in the matter by filing an affidavit in support of the Democratic Alliance’s successful court battle to have the charges reinstated after these were controversially withdrawn by then acting National director of public prosecutions, Mokotedi Mpshe, in 2009.
Msphe’s grounds, later dismissed as irrational by the supreme court of appeal, centred on perceptions of political string-pulling regarding the timing of Zuma’s indictment by the head of the now defunct Scorpions, Leonard McCarthy.
Perhaps the most sensational part of Zuma’s application is the claim that McCarthy worked for the CIA.
Having been aware of this conflict, Downer should not have persisted with his efforts, termed “obsessive” by Zuma, to bring the matter to trial, according to the application.
The defence further contends that, given the delays in the matter, Downer should have desisted because this meant Zuma’s trial had effectively become one by public opinion. Instead, Mpofu and Masuku submitted, Downer compromised himself by talking to the media.
By reading from the affidavit, despite Koen’s assurance that he had read, paginated and understood the document, the lawyers were plainly playing to the public interest in the matter.
Masuku submitted that on Downer’s own submission, political interference in the matter has been damaging and that if authentic, the allegations of such were damning. Nonetheless, he and Mpofu argued, Downer pursued the case regardless, though he should have known better.
Koen indulged the arguments for about an hour.
He then said: “You can accept that — as I have indicated earlier — that I have read this affidavit and I can also mention to you that when the other volumes are going to be indexed and paginated, you don’t have to take this this volume away, because I have already referenced it and cross-referenced it and made my own notes, which are confidential and privileged to me, so I have done quite a bit of work on this.
“I would like to think that I have a fairly good working basis of what is in the affidavit.”
But Koen also acknowledged that the case law pertaining to the application was fairly sparse.