Former president Jacob Zuma has petitioned the Supreme Court of Appeal (SCA) to hear his dismissed special plea after the Pietermaritzburg High Court in February denied him the opportunity of leave to appeal. 

Zuma and his current legal team, who have yet to notch any notable legal successes in their lawfare against the State, have remained resolute on a course of action to try and stop the former president from facing a criminal trial for his allegedly corrupt actions in the multibillion-rand 1999 Arms Deal.

In their latest bid, Zuma’s team remains firm in the belief that Judge Piet Koen’s decision to deny Zuma’s leave to appeal was incorrect. 

“The petitioner [Zuma] submits that he has a reasonable prospect of success on appeal,” according to Zuma’s supporting affidavit to the SCA.   

The affidavit states that his petition to the SCA is in fact four separate petitions, each presenting different yet closely related grounds as to why his appeal should be heard.  

Zuma applied in 2021 to have veteran prosecutor Billy Downer removed from the impending trial in terms of section 106 (1)(h) of the Criminal Procedure Act, which deals with a prosecutor’s “title to prosecute”. The former president contends that Downer is not fit to prosecute at his trial because he is biased. He argued that should the court find in his favour, he would have been entitled to an immediate acquittal in terms of section 106 (4) of the same act. 

Koen dismissed the special plea application in October 2021, saying “many” of the items raised by Zuma’s legal team in support thereof were “based on speculation or suspicion or are based on inadmissible hearsay evidence and not on fact”. 

In February, Koen denied Zuma leave to appeal his October judgment, stating that the trial should proceed. He said that Zuma could challenge the special plea judgment after the criminal trial was completed.

The crux of Zuma’s argument is that Downer lacks “independence and impartiality”, and that the impending trial has already been tainted by political and unlawful meddling, specifically involving the National Prosecuting Authority. Downer would thus be unable to conduct a “lawful prosecution” that will uphold Zuma’s constitutional rights to a fair trial. 

His first petition is against Koen’s judgment in refusing him leave to appeal. The second petition is against Koen not allowing further evidence to be argued during the appeal process, the third deals with alleged irregularities by Koen in the handling of Zuma’s application for leave to appeal, and the fourth petition seeks to overturn Koen’s decision not to allow Zuma to appeal questions of law directly to the SCA. 

His first petition aims to challenge Koen’s reliance and interpretation of case law focusing on section 106(1)(h) of the Criminal Procedure Act (CPA) dealing with a prosecutor’s “title to prosecute” and two decisions made by the SCA related to the act. 

Koen found the SCA court rulings aptly dealt with the interpretation of the phrase “title to prosecute”, giving it a narrow definition. Zuma is hankering for a broader understanding of the phrase that would, via his definition, lead to Downer being removed from the case.  

Zuma claims that the technical points he presented to Koen, and which his legal team is seeking to vent before the SCA, were being “raised for the first time in our courts” and therefore existing case law does not sufficiently cover his legal situation. 

He said Koen had also failed to properly interpret section 106(4) of the CPA, which Zuma said should allow his acquittal. He said that on this alone he should be allowed to apply for leave to appeal. 

“The interests of justice demand that the appeal be entertained because it has good prospects of success and subjecting the accused person to the prejudice of enduring a lengthy trial with a prosecutor who may later be found to have lacked title to prosecute, would self-evidently lead to an injustice,” said Zuma.  

The second petition deals with Zuma’s allegations and subsequent laying of charges against Downer on 21 October 2021, just five days before Koen delivered his judgment dismissing the special plea. In those charges, Zuma claimed that Downer had leaked his confidential medical records to the media. Zuma wanted this issue to be entered into the record at his unsuccessful February appeal hearing, which Koen did not agree to. 

Zuma’s third petition deals with the alleged procedural irregularity by Koen in the handling of the former president’s application for leave to appeal. Zuma claims that Koen’s version of how the application was managed was a “subjective interpretation”. 

“This is clearly a matter which requires objective determination by a higher court than being resolved by the subjective views of [Koen]”.

Zuma claims that Koen’s statements that the issues raised by him were “frivolous, absurd, or amount to an abuse” of the court process were simply an attempt to “navigate the narrow grounds for refusal” for him to deal with the alleged irregularity. 

The fourth petition relates to Zuma’s legal team wanting to raise “questions of law” with the SCA, which Koen dismissed as too vague. 

Zuma believes the questions of law, which, among others, deal with the interpretation of the phrase “title to prosecute” as found in Section 106 of the CPA,  “are legitimate questions” that can only be dealt with by the SCA.  

“I am advised that all the problems which permeate all the petitions can be traced back to the original sin of refusing to embark on a wider constitutional interpretation of section 106(1)(h) of the CPA,” said Zuma in his affidavit. 

The State has said previously that should Zuma petition the SCA it would oppose the move. 

Zuma is accused of receiving 791 payments, totalling R4.1-million, between 1995 and 2004 from his former financial adviser/economic adviser Schabir Shaik and Shaik’s companies, to help the arms company Thales, Accused Number Two, to secure lucrative defence contracts from the government as part of South Africa’s armaments deal.

Downer was part of the original team that successfully secured Shaik’s conviction in 2005. Shaik was released on medical parole in March 2009.

Zuma is facing one count of racketeering, two counts of corruption, one count of money laundering and 12 counts of fraud. Thales is facing one count of racketeering, two counts of corruption and one count of money laundering.

Both parties have pleaded not guilty to all charges. The trial is set to start on 11 April. DM