Early birthday pressie: Zuma likely to win postponement

Former president Jacob Zuma is likely to succeed in his application for a postponement of his criminal trial.

While Pietermaritzburg high court judge Piet Koen says he will give his ruling at 2pm, during argument he indicated he had no discretion not to agree to Zuma’s application because he had an appeal application pending before the Supreme Court of Appeal (SCA).

In these circumstances the law provided for automatic suspension of any ruling on appeal.

Earlier this year, the judge refused an application made by Zuma — who turns 80 on Tuesday — in terms of a “special plea” at the start of his arms deal-related criminal trial for the removal of lead prosecutor advocate Billy Downer from the case.

Zuma challenged Downer’s “title to prosecute”, saying Downer was biased, guilty of misconduct and, as a consequence, he would not get a fair trial.

Koen ruled at that time that, in terms of law, “title to prosecute” was an administrative term and Downer had been duly authorised to head the prosecution.

Zuma, who had pleaded not guilty to fraud, corruption and money-laundering charges, had no right to bring an applications mid-trial and fair trial rights issues could be raised by him if he was convicted and on appeal.

Koen refused to grant Zuma leave to appeal his ruling. But Zuma’s legal team approached the SCA, requesting permission to appeal that, and several other issues, before that court.

In a one-sentence ruling at the end of March, two judges of that court refused to grant his petition, saying it had no prospects of success.

Last week, his team lodged a “reconsideration” application with the president of the SCA, judge Mandisa Maya.

The trial was set to resume on Monday.

Zuma, who is reportedly ill, was absent.

His legal team said the trial could not resume because of the pending “reconsideration application” and, possibly, further legal proceedings in the Constitutional Court.

In remarks during argument, Koen indicated that because of the reconsideration application, which effectively suspended the dismissal of the petition by the two SCA judges — and in turn his own judgment — he believed he was legally bound to grant the postponement.

However, Downer maintained the judge had a discretion if the appeal was found to be mala fides and an abuse of the court.

Quoting from a previous ruling involving Zuma in which the judge had cited TS Eliot speaking about the “recurrent end of the unending”, Downer said: “This [application] is another recurrent end of the unending ... with more to come.”

He said there was no merit in the reconsideration application and repeated the state’s often-cited contention that Zuma was adopting legal “Stalingrad tactics” to avoid trial.

“We have had nearly two decades of delays. We say you do have a discretion [to refuse the postponement] in the interest of justice. We say let’s get on with it.”

In reply, Dali Mpofu, for Zuma, said the Stalingrad allegations were “corridor gossip” and had not been proved or substantiated.

“Is Zuma some special sort of person who is not allowed to appeal like other human beings? This gratuitous insult of stalling and delays is not born out by the facts. 

“We were not here two decades ago. This trial has started ... Mr Zuma has done everything in his power for this matter to proceed,” Mpofu said, arguing that his client had twice waived his rights to be present in court [while he was ill] so the matter could proceed.

Zuma and his co-accused, French arms company Thales, face charges of racketeering, corruption, money laundering and fraud relating to the arms deal.

Zuma is accused of receiving about R4m via his former financial adviser Schabir Shaik to help Thales secure defence contracts. Shaik was convicted in 2005 but was released on medical parole in 2009.

The case will proceed after lunch. 

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