Stalingrad defence: Zuma’s costly and legally untenable attempts to avoid facing criminal charges
Jacob Zuma’s failure to have lead prosecutor Billy Downer recused — and then secure wholesale acquittal on charges of corruption, fraud, and racketeering — made me wonder how many cases related to his criminal prosecution he had lost and won, and who may be paying his legal fees, which must be in the tens of millions of rands.
Dismissing yet another application by former president Jacob Zuma to stall or end his prosecution, the Pietermaritzburg High Court invoked the legal principle of “issue estoppel”, and suggested this could “provide a remedy to prevent the abuse resulting from the same issue being litigated in different forms before different courts”.
The courts rely on issue estoppel to bring an end to litigation and to avoid the same issues being litigated with the potential of different judgments being given. The court invoked this principle in response to the 14-year history of litigation relating to Zuma’s criminal prosecution.
Over the past 14 years, Zuma has gone to extraordinary lengths to prevent investigators from accessing information likely to incriminate him in criminal activity. When that failed and he was charged, Zuma again went to extraordinary lengths to stop the prosecution, recycling many of the same “irrelevant” or “speculative” claims “not founded on fact” or based on “hearsay”, in an attempt to stop his prosecution and to convince the public that it should ignore the evidence against him.
Ultimately, Zuma lost every single legal battle aimed at achieving either of the goals set out above, with his counsel on several occasions conceding that Zuma’s arguments had no legal merit.
This was only possible because Zuma had been able to finance the many applications (and the inevitable cost orders), something that only extremely wealthy criminal defendants would normally be able to do. While this tactic might have been successful in delaying his prosecution, a brief survey of the relevant court judgments reveals that it has seldom led to success in court due to the lack of facts or cogent legal arguments to support his applications. Let’s have a look.
It all started well for Zuma when the High Court in Durban struck his case from the roll in 2006 after an application by the State for a postponement to complete its investigation and finalise an indictment was refused.
Despite this setback for the prosecution, investigators continued to gather evidence that might incriminate Zuma by approaching the courts on several occasions to try to prevent the National Prosecuting Authority (NPA) from obtaining evidence incriminating him. This is a curious strategy to follow — especially for a politician — given the fact that Zuma has consistently claimed that he had done nothing wrong, as an innocent person would have no reason to prevent the NPA from accessing evidence.
But from the perspective of a criminal suspect, the strategy made sense and at first met with success when the Durban High Court invalidated five search warrants relied on by the Scorpions to execute searches at Zuma’s home and at other premises throughout the country in which approximately 93,000 documents were seized (Zuma v National Director of Public Prosecutions 2006 (1) SACR 468 (D)). The court also ordered the Scorpions to return all items seized.
However, in 2008 the Supreme Court of Appeal (SCA) overturned the high court judgment and issued a cost order against Zuma (NDPP v Zuma 2008 (1) SACR 298 (SCA)). The Constitutional Court confirmed the SCA judgment regarding four of the five warrants, but invalidated the warrant used to search the offices of Zuma’s then-lawyer Michael Hulley and did not issue a costs order (Zuma v NDPP 2008 (2) SACR 421 (CC)). In its judgment, the court pointed out that Zuma had probably lied to investigators:
“Early in the investigation, [Zuma] denied attending a crucial meeting during March 2000, a meeting which was evidenced by the encrypted fax and also by Mr Thétard’s 2000 diary. According to the judgment in the trial of Mr Shaik, Mr Zuma did attend that meeting. That, in my view, is sufficient to throw doubt on whether Mr Zuma would have been fully frank and honest [with investigators].”
Zuma also failed to stop the NPA from accessing evidence from foreign authorities. In 2007, the Gauteng High Court dismissed (with costs) Zuma’s application aimed at stopping the National Director of Public Prosecutions (NDPP) from requesting possible incriminating evidence from UK authorities (NDPP v In Re: An Application for the Issuing of a Letter of Request in terms of Section 2(2) of the International Cooperation in Criminal Matters Act No 75 of 1996,  ZAGPHC 197).
Later that same year, Zuma asked the SCA to overturn a decision by the Deputy Judge President of the High Court at Durban to issue a letter of request to the Attorney-General of Mauritius to hand over possible incriminating documents to investigators in the Zuma matter. The SCA dismissed the application, awarding costs against Zuma (Zuma v NDPP 2008(1) SACR 298 (SCA)). The Constitutional Court dismissed a further appeal by Zuma in this matter the following year, and ordered him to pay costs, including costs of the employment of two counsel (Zuma v NDPP 2008 (2) SACR 557 (CC)).
Having failed to prevent the NPA from accessing possible crucial evidence against him, and having since been charged by the NPA, Zuma signalled a change of tactics with an application to the KwaZulu-Natal High Court to have his indictment by the NPA set aside. In a politically significant but legally bizarre judgment, Nicholson J declared the decision to charge Zuma invalid and set it aside (Zuma v NDPP  ZAKZHC 71). But this was a pyrrhic victory, as the SCA overturned the Nicholson judgment the following year in the most scathing terms and ordered Zuma to pay costs, including those consequent upon the employment of three counsel. Given the fact that the judgment was handed down 11 years ago, it is quaint to see that the SCA complained at the time that “the litigation between the NDPP and Mr Zuma has a long and troubled history and the law reports are replete with judgments dealing with the matter” (NDPP v Zuma 2009 (1) SACR 361 (SCA)).
But in April 2009 the NDPP dropped all charges against Zuma shortly after he produced (probably illegally obtained) telephone recordings known as the “spy tapes”. This turned out to be a political and not a legal decision, and it was no surprise when the DA challenged the validity of this decision in 2009. This led to a protracted court battle with the (newly pliant) NPA, which refused to produce the content of the “spy tapes” and other documents needed for the review.
After the high court ordered the NPA to produce the “spy tapes”, Zuma appealed the decision to the SCA. Predictably, the SCA dismissed the appeal with costs, including the costs attendant upon the employment of two counsel. During oral argument, Zuma’s counsel had to concede that there was no factual basis for the claims made by Zuma in his application and “ultimately conceded, without qualification, that this meant he had no case against the release by the NDPP” of the “spy tapes” (Zuma v DA  ZASCA 101). In short, the appeal made no legal sense.
After the high court subsequently ruled that the decision by the NDPP to drop all charges against Zuma was unlawful and invalid, Zuma, inevitably, appealed the matter to the SCA. Before the SCA, counsel on behalf of Zuma again “summarily” conceded that the decision to discontinue his prosecution was irrational and was liable to be set aside, a concession the SCA described as “a sudden and dramatic change of stance”. The SCA also ordered the NPA and Zuma jointly to pay the costs, including the costs of three counsel and the costs related to the applications for leave to appeal (Zuma v DA  ZASCA). Again, given the concession made by Zuma’s counsel, the appeal made no legal sense.
Fast-forward to 2020, when Zuma made another attempt to avoid his day in court by launching an application for a permanent stay of prosecution. Given the long list of judgments in which almost all Zuma’s arguments for a stay had previously been rejected, the high court had no choice but to dismiss Zuma’s application with costs, such costs to include those consequent upon employment of two counsel.
The judgment contains many passages where the high court pointed out that Zuma’s application merely regurgitated arguments advanced and rejected in some of the judgments discussed above. For example, on the argument that the “spy tapes” justify the permanent stay of prosecution, the court pointed out that the SCA had already rejected the argument and that the SCA judgment was binding on Zuma (S v Zuma 2020 (2) BCLR 153 (KZD)). (11 October 2019). As earlier court judgments had made it crystal clear that the permanent stay of prosecution application had no legal merit, the application again made no legal sense.
Zuma suffered a further setback when, first the high court and then the SCA held last year that Zuma was not entitled to unlimited financial support from the state to finance his legal defence, and ordered Zuma to repay the money he was enriched with. The court also directed the State Attorney to “take all necessary steps, including the institution of civil proceedings, to recover the amounts paid by the State for Mr Zuma’s legal costs”. The SCA further ordered Zuma to pay the cost of the DA (for three counsel) and the EFF (for two counsel), taking a dim view of the abuse involved in this matter:
“To have granted Mr Zuma a blank cheque to pay private lawyers is egregious. A web of maladministration appears to have made that possible. Many of the payments have no asserted legal basis whatsoever…” (Zuma v DA  ZASCA 39).
As the discussion above makes clear, Zuma has spent many millions of rands in legal fees to pursue legally untenable appeals in a futile attempt to stop investigators from accessing potentially incriminating evidence from investigators, and to try to stop his prosecution altogether. Not one of these court applications was based on an argument that there was no credible evidence against Zuma and that he was in fact innocent. This is curious, as the SCA had made clear that Zuma’s best and probably only shot at ending the prosecution was to show that it was proceeding despite the absence of credible evidence against him. While Zuma has professed his innocence in court papers and at public events, it is interesting to note that this has always been in vague and general terms. He has never made any attempt to refute any of the specific incriminating evidence gathered by the NPA over the years.
Given the vast sums of money Zuma (or, unlawfully, the state) had spent over the years on various court battles aimed at avoiding his day in court — often in cases where his counsel had to concede to the court that there was no factual or legal basis for some of Zuma’s claims — it was perhaps not surprising when he claimed under oath in his recent rescission application that he had failed to take part in contempt of court proceedings before the Constitutional Court “because of a lack of financial resources”.
In the light of Zuma’s alleged “financial difficulties”, the recent announcement that he intends to lodge yet another hopeless appeal against the recent high court judgment, makes no sense — unless one assumes, first, that Zuma lied to the Constitutional Court when he claimed to lack financial resources to engage in court cases, and, second, that the aim of his legal strategy had never been to win legal victories, but rather to prevent the public from hearing the NPA’s evidence against him.
For as long as Zuma manages to stall the prosecution, the public will be prevented from hearing the State’s case in all its detail, and will be unable to assess for themselves to what extent Zuma had a case to answer. This is perhaps even more important for Zuma than staying out of jail (the assumption being that medical parole could probably easily be arranged). This is because the public airing of all the evidence against him poses a grave political threat to him, as he runs the risk of losing the significant pockets of public support he still enjoys if the public’s attention turns to the evidence against him. DM