Stalingrad, season 27? Zuma hears on Tuesday if case is postponed ... again
Jacob Zuma’s counsel, Dali Mpofu, believes ‘all these problems may be resolved by the stroke of a pen’
The Pietermaritzburg high court will rule on Tuesday on whether it will postpone the corruption trial of former president Jacob Zuma, after his lawyers argued that it would be a breach of his fair trial rights to hear his special plea virtually.
The former president’s trial was set to resume on Monday, with judge Piet Koen scheduled to hear argument on Zuma’s special plea that prosecutor Billy Downer had “no title” to prosecute.
However, with last week’s unrest in KwaZulu-Natal after Zuma’s arrest for contempt of court, the courts were closed and the judge wrote to the parties to explore the possibility of hearing argument on the special plea via a virtual platform. He also suggested that it “might even be prudent” to adjourn for a week.
Over the weekend, Zuma’s lawyers applied to postpone the hearing, saying a virtual hearing would breach the former president’s rights to a fair trial under section 35 of the constitution, including the right of an accused person to be present when being tried.
On Monday his counsel, Dali Mpofu SC, suggested a three-week postponement. He said that, by that time, the Constitutional Court may have delivered its judgment in Zuma’s application to rescind its order that he be imprisoned for contempt of court. He said then “all these problems” may be “resolved by the stroke of a pen”.
Mpofu argued that the only exceptions to the rule that an accused must be present at his trial, and allowing for virtual hearings, were “exhaustively” set out in the Criminal Procedure Act. But none of these applied in this case, especially since the former president wanted to include oral evidence as part of his special plea.
He said Zuma’s team took exception to the accusation by the National Prosecuting Authority that this was another delaying tactic on the part of Zuma, because the possibility of a postponement was the raised by judge Koen himself.
But counsel for the state, Wim Trengove SC, called the postponement application “Stalingrad, Season 27”, and asked the court to not only dismiss the application for a postponement, but also to dismiss the special plea.
Quoting earlier judgments, Trengove said that, when it came to fair trial rights, fairness cut both ways. Courts must be fair to the accused, but also to the public, as represented by the prosecuting authority, he said.
“The accused has for more than 10 years taken every point in the book to avoid having his day in court. He desperately seeks to avoid answering the charges of corruption, fraud and money laundering made against him,” said Trengove.
He said there was no need for oral evidence. For one thing, the special plea that a prosecutor has “no title” may only be directed at an individual prosecutor — here, Billy Downer — whereas Zuma’s plea was directed at the NPA as a whole, he said.
Also, said Trengove, oral evidence was only required when there were material disputes of fact and here there were none. Most of what Zuma brought was a “rerun” of complaints made in previous litigation and had already been decided — in the marathon “spy tapes” litigation when the DA sought successfully to overturn an earlier NPA decision to drop the corruption charges, and then in Zuma’s failed bid for a stay of prosecution.
To illustrate, Trengove said 135 paragraphs of Zuma’s heads of argument in the special plea were “cut and paste” from his application for leave to appeal to the ConCourt against the permanent stay application.
But Mpofu and Zuma’s second senior counsel, Thabani Masuku SC, said they were not arguing the merits of the special plea on Monday but only the postponement. Masuku said Trengove had “not once” said how the state would be prejudiced by a postponement of a few weeks.
Earlier Trengove had argued that there was no breach to Zuma’s rights because the virtual hearing of the special plea would still take place in public, as the media had been notified and was broadcasting the proceedings, and that Zuma would be there virtually and would also be able to virtually consult with his lawyers privately if necessary.
But Masuku said a virtual proceeding was not the same. The accused was entitled to watch in person, not through television or computer. He said there was “no dignity” in asking Zuma to consult with his lawyers “via the cellphones of other people”.
Masuku said: “This passionate, zealous pursuit of Mr Zuma at all costs, by bending rules and cutting corners, is not right. Let’s just have a fair trial. Let’s have him in court. Let’s have everyone there. Let’s argue the case there.”
Koen said he would deliver his ruling on Tuesday at 10am.