Former president Jacob Zuma’s legal team has once again managed to temporarily stop their client from standing trial in a matter that has been in and out of the courts for close to 20 years. 

They will also no doubt feel emboldened by Judge Piet Koen saying on Monday that there was no evidence before him to show that Zuma was abusing the court process as he awaited the outcome of a Supreme Court of Appeal (SCA) reconsideration application made directly with that court’s president, Mandisa Maya. 

The reconsideration application relates to the SCA recently dismissing Zuma’s special plea appeal, which Koen had also dismissed in February. 

“The appeal process should be allowed to run its course,” said Koen at the Pietermaritzburg High Court as heavy rains pelted the streets, keeping Zuma’s supporters to a minimum. Inside the court building, however, there was palpable tension among some of the former president’s most ardent fans, most notably his “special friend” Dudu Myeni. 

Dudu Myeni and Carl Niehaus at the Pietermaritzburg High Court. (Photo: Sandile Ndlovu / Pool)

The former SAA chairperson and delinquent director ended up in a one-side scuffle with a photographer as she tried to stop him taking photos. Myeni attempted to slap the camera from TimesLive photographer Sandile Ndlovu’s hands and, when she couldn’t manage that, grabbed on to his jacket, leading to a short and awkward quasi-dance and tussle down the court corridor. The incident was caught on camera by journalists, a murmuration of which were in and out of the precinct.  

The former president was not in court. “[He] is in hospital as we speak, doctors are running tests to see what the challenge is,” said the spokesperson for the Jacob Zuma Foundation, Mzwanele Manyi. He added that Zuma’s medical team had agreed that he shouldn’t be in court as he was to avoid a “stressful situation”. Zuma’s senior counsel, Advocate Dali Mpofu, had told Koen much the same at the start of proceedings.

Zuma — who turns 80 on Tuesday — was first indicted on 20 June 2005. To the average South African and to the prosecution, it appears that despite all of his comments about wanting his day in court to prove his innocence in the Arms Deal matter, Zuma continues to seek every possible legal avenue to stall proceedings. 

But, according to Koen, he did not have enough evidence before him in the current matter to make a determination that the former president was abusing court process.  

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Said Koen: “Mr Zuma has challenged many decisions adverse to him in the past, usually in invoking the entire appeal process to the highest courts in this land and, in many instances, has been unsuccessful, which resulted in inevitable and unfortunate delays.

“He is also on record through previous counsel representing him, that he will continue to exercise all rights available to him. But the exercise of those rights, as much as they may be viewed with suspicion and distrust from certain quarters as resulting in delays which only favour him, do not per se amount to an abuse of those rights. The finding of [abusing the court process] would require more and clear proof from the state, which I cannot make on the allegations in the present papers alone.”

Arguing earlier for the need for the postponement, Mpofu maintained that the SCA may have not fully considered all of his client’s reasons as to why he should have been granted direct access to the SCA to argue an application which, in the main, calls for the state’s veteran lead prosecutor, Advocate Billy Downer, to be removed from the case. 

State prosecutor Billy Downer, Advocate Dali Mpofu and Advocate Barry Roux at the Pietermaritzburg High Court. (Photo: Sandile Ndlovu / Pool)

Zuma unsuccessfully petitioned the SCA for direct access after being denied access by Koen in February.

Zuma’s legal team sent four separate petitions to the SCA in which they argued they should be granted access on each one.

Zuma’s 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. 

Mpofu claims that the 31 March decision by the SCA not to hear the petitions only dealt with the first petition and not the rest. Therefore, a reconsideration application was made directly to Justice Maya. 

Said Mpofu: “The SCA has, unfortunately, created an ambiguity, which was unnecessary. It is very clear that they did not consider anything except the application for leave to appeal.”

The reconsideration application has been made in terms of section 17.2(f) in terms of the Superior Courts Act, which allows an SCA Judge President to personally intervene and have a matter heard by the court.

Furthermore, and to which Koen agreed, the Superior Courts Act section 18.1 states that the appeal process immediately suspends any previous decisions.

Zuma had wanted to tell the SCA, as he had unsuccessfully told Koen in a special plea application in October 2021 and then again in a leave to appeal application in February, that Downer lacks “independence and impartiality”, and that his trial had already been tainted by political and unlawful meddling, specifically involving the National Prosecuting Authority (NPA) and, by extension, Downer. Zuma claimed that Downer would therefore be unable to conduct a “lawful prosecution” that would uphold his constitutional rights to a fair trial.

But Downer asked Koen on Monday “not to entertain delaying tactics” as it will have the “effect of delaying justice” and “erode the public’s confidence in the system of justice”.

“Our principle submission is that should a postponement be granted, then today’s date, 11 April 2022, will be yet another recurrent end of the unending, four years later, with any number more of recurrent ends in sight without end. And this despite today’s date being agreed between all the parties as a trial date, without qualification, in which the court twice ordered as the date on which the trial must finally commence,” said Downer. 

He said the application before the court was “part of the Stalingrad defence and is meritless”, and done in “bad faith”. 

Zuma filed a criminal complaint against Downer last year at a Pietermaritzburg police station just days before Koen dismissed his special plea. The former president alleged in his affidavit to police, among other things, that Downer leaked a “confidential” medical report via a third party to News24 journalist Karyn Maughan. Nothing in that “medical report”, however, disclosed anything about Zuma’s medical condition, and it had already been filed with the court, making it a case of public record. 

Zuma at the time said that the “leak” was part of a pattern of unlawful disclosure of information that he has had to contend with throughout the Arms Deal matter. He said this week that he would be seeking a private prosecution in the matter. 

Koen diarised 17 May as a holding date for the trial to resume. 

The former president 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 Thales (accused number two) 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.

Zuma and Thales have pleaded not guilty to all charges. DM