Another court could think differently about the National Prosecuting Authority’s “violations” of the Constitution and grant Jacob Zuma a permanent stay of prosecution, the former president’s counsel argued on Friday.
Zuma’s legal team was at the KwaZulu-Natal high court applying for leave to appeal against the court’s order.
That order rejected his bid for a permanent stay of his corruption prosecution.
Zuma faces prosecution for 12 counts of fraud, four counts of corruption, one count of racketeering and one of money laundering. He lost an application for a permanent stay of prosecution last month, clearing the way for his trial to proceed. This is after a marathon 14-year delay since he was first charged with corruption relating to the infamous “arms deal” — the 1999 purchase of “strategic armaments” that has been mired in allegations of corruption.
Zuma’s co-accused, French arms company Thales, was also applying to appeal against the rejection of its own application to stay the prosecution.
Zuma’s counsel, Muzi Sikhakhane SC, said that there were errors of law in the high court’s judgment and that the court had wrongly blamed the former president for some of the delays in the prosecution coming to trial.
One of these was the delay caused by the litigation over the “spy tapes”. These are recordings of phone conversations between former prosecutions head Bulelani Ngcuka, after he resigned as prosecutions head, and former Scorpions head Leonard McCarthy about when to time the service of Zuma’s indictment — before or after the ANC’s 2007 Polokwane elective congress — in order to influence its outcome.
It was on the basis of the spy tapes that the charges against Zuma were first dropped in 2009. What followed was a lengthy court battle to review the decision to drop charges, which only ended in 2017.
Sikhakhane said it was the State’s responsibility to ensure a speedy prosection.
With the spy tapes litigation, even though the state’s standpoint in the case may have coincided with Zuma’s interests, it was the state, and not Zuma, “a private citizen”, that must shoulder the blame for the delay. “A higher court may well find that Mr Zuma was advantaged by that decision [to defend the spy tapes litigation], but will not attribute it to him,” said Sikhakhane.
He said the test for granting leave to appeal was not so high that the KZN court would have to conclude that its own judgment was wrong. The test was that there should be reasonable prospects that an appeal court would reach a different conclusion, he said.
Sikhakhane argued that a higher court could see differently to the high court his team’s argument on the effect of the violations of the NPA Act and the Constitution. These violations were serious enough for another court to conclude that the NPA’s hands were “now dirty” and therefore the trial could not proceed.
He also said that the decision to prosecute Zuma separately from Schabir Shaik — in his written argument he referred to this as a “dry run” — was highly prejudicial to Zuma. For example, an encrypted fax — a crucial piece of evidence that the state will argue shows a bribe — had also been admitted as evidence in the Shaik trial.
In Zuma’s trial, “the likelihood would be zero” for the court to now refuse it, said Sikhakhane.
However counsel for the State, Andrew Breytenbach SC, said this was wrong. Every piece of evidence in Zuma’s trial would have to be led and proved, he said.
He said that the Superior Courts Act had raised the bar for when high courts were allowed to grant leave to appeal. There had to be a “measure of certainty” that the higher court would come to a different conclusion.
And in this case there was “no prospect” of this.
He added that Zuma had relied extensively for his argument — that the NPA had violated the constitution for political reasons — on an earlier judgment of Chris Nicholson of the KZN court and an affidavit from the NPA’s Willie Hofmeyr. But both of these had already been heavily criticised by the Supreme Court of Appeal.
There was also no evidence that the conversations captured in the spy tapes impinged on the propriety of the investigation or prosecution, “none whatsoever,” he said.
Breytenbach said that Zuma’s team had made “general arguments” about political interference but when one drilled down the facts that underpinned those arguments, it was “like candy floss; one grabs it and there is nothing there.”
Judge Jerome Mnguni said judgment would be handed down on 29 November.