On Tuesday 4 February 2020 the high court issued a warrant of arrest for former President Jacob Zuma (stayed until his next appearance in May) because Zuma failed to attend his criminal trial and his lawyers did not provide adequate evidence to justify this failure.

The Constitutional Court pointed out in 2002 in its judgment in S v Singo that the failure of an accused in a criminal trial to appear in court “manifestly hinders the administration of justice”. It is therefore important, said the court, that the law should provide for the effective prosecution of those who fail to appear in court without a valid reason.

According to the Constitutional Court, the failure of a criminal accused (such as Jacob Zuma) to appear in court has the potential to undermine the administration of justice:

“This may well result in the public losing confidence in the system of criminal justice. The ensuing consequences may be far-reaching. The State’s effort to fight crime would be undermined and the public may well take the law into their hands. It is therefore essential that courts be equipped with the power to deal effectively with any conduct that threatens the smooth running of the administration of justice.”

The Criminal Procedure Act contains punitive provisions to prevent a criminal accused from avoiding court by merely offering weak or fabricated excuses for his or her absence. In terms of section 67 of the act, an accused person out on bail may forfeit his or her bail if he or she fails to appear in court and will be sent back to prison. And in terms of section 72(4) of the act, an accused person released on a warning (which is the case with Jacob Zuma) may be found guilty of a criminal offence if he or she fails to attend court.

Section 72(4) of the act allows a court to issue an arrest warrant for a criminal accused out on a warning who has failed to appear in court. When the accused is then brought before court, the court must “in a summary manner enquire into his [or her] failure and, unless such accused or such person satisfies the court that there is a reasonable possibility that his failure was not due to fault on his part, sentence him to a fine not exceeding R300 or to imprisonment for a period not exceeding three months”.

While the accused does not have to prove beyond a reasonable doubt that it was impossible for him or her to attend the court hearing, he or she must satisfy the court that there is a reasonable possibility that his failure was not due to fault on his part. In the case where the reason for the absence is ill health, the accused must either testify him or herself about the alleged illness, or the defence must present other evidence to the court to show that the accused was really ill and that it was therefore impossible for him or her to testify.

The reason why the “sick note” presented by Jacob Zuma’s lawyer was not sufficient was because it contained far too little information to satisfy the court that there was a reasonable possibility that Zuma was too ill to attend court. Zuma and his lawyers will have to provide some detail about his alleged illness and some evidence not only that he has been admitted to a foreign hospital, but also that it was necessary to be admitted in this manner.

Like any other criminal accused, Zuma will not be able to argue that he cannot be expected to take the court into his confidence about his health because it would infringe on his right to privacy. As the Constitutional Court has held in several cases, an accused in a criminal case by definition loses some of his or her rights. One does not have a right not to suffer the ordinary and inevitable consequences of being a criminal accused.

There is no better illustration of how the courts deal with claims by a criminal accused that he or she is too ill to attend court, than the curious case of the alleged fraudster, Gary Porritt. Porritt was the CEO of Tigon, which like Steinhoff, was one of the top companies on the JSE before imploding because the company was run as a pyramid scheme. It has now been more than 14 years since Porritt was first arrested, yet his trial (which began back in 2016) still continues in the High Court.

Various courts have made pronouncements that Porritt has intentionally delayed proceedings with applications and appeals, with relatively little chance of success. This was according to the “Zuma principle”, said one judge. Part of the delay was caused by Porritt not attending court due to alleged illness. This led to the judgement in S v Porritt and Another in which the High Court applied the same test developed by the Constitutional Court in S v Singo and found that Porritt had failed “to satisfy the court that his non-appearance was not due to circumstances which reasonably prevented him from appearing”.

Porritt testified to the court and told it the kind of long and improbable story one would expect a confidence trickster in a tight spot to spin. He claimed that on the weekend before he had to appear in court, he became dizzy at a bar and then fell on his face. Subsequent to this “dizzy spell” he was booked into the emergency room at his local hospital, where he was examined by the senior doctor on duty and put on a drip. An ECG was also done because of concerns that he was suffering from a heart condition. On the Sunday night he made the request to the doctor for a sick note to present to the court. The doctor provided a handwritten note as follows:

“This is to certify that Mr Gary Porritt is presently an in-patient at the Mediclinic Hospital Pietermaritzburg

• • He was admitted on 2017/06/10
  • He is being evaluated for a problem of syncope
  • He shall be an in-patient for at least the next 3-5 days

Sincerely Dr …. (Cardiologist)”

But by the Tuesday he was discharged from the hospital, only to arrange for admission to a psychiatric facility over the following weekend, and for a note from the doctor that read:

“To whom it may concern:

This is to certify that (indecipherable) saw Mr G Porritt today.

He has just recently been discharged from Mediclinic for investigation of syncopal attacks by various specialists.

I have now referred him to Oatlands psychiatric facility in Howick for his mental state and possible further evaluation for epilepsy.”

On the Sunday Porritt obtained another sick note from a psychiatrist at the psychiatric facility that read:

“To whom it may concern:

This is to inform you that the above mentioned Patient was admitted to Oatlands care centre on 18/06/17.

Presented with syncopal attacks? Psychiatric manifestation. To be further assessed.

Not fit to attend court currently.”

Porritt was discharged from the psychiatric facility two days later. But Porritt again staged a frantic bid to get back into hospital (he may be a crook, but he is very determined), and it was while he was back in hospital for a third time that he was again arrested by the police. At this point, Porritt claimed that he could not even walk or stand and that mentally he felt terrible because he had had a near-death experience.

The state was rather sceptical about Porritt’s claim that he was seriously ill, given the fact that – a bit like Jacob Zuma – he had a long history of delaying his trial. The state therefore staged a mini-trial to establish whether there was sufficient reason to justify Porritt’s absence from court. Porritt himself had to testify. The state also called some of the doctors who treated Porritt to testify about Porritt’s health. One doctor testified that “even if we had not at this stage identified an exact cause why he had collapsed, but what we could safely say was he had a favourable prognoses, he was not about to die from whatever caused his.” (sic)

When pressed about writing the first doctor’s note, the relevant doctor testified that “patients always asked for these notes as evidence that they are, at the time, in hospital and they will be in hospital for some time, for some time, for some unforeseen time in the future, yes, so I wrote this one”.

Under cross-examination, another doctor had to concede that his sick note may have been misconstrued as it did not mean to certify as fact that Porritt was too ill to attend his trial. For these reasons it is no wonder the court did not accept Porritt’s various sick notes. It held that these did not provide sufficient evidence to conclude that there was a reasonable possibility that Porritt was really so ill that it was impossible for him to attend court.

The Porritt case should worry Jacob Zuma and his lawyers because it suggests that an accused who claims ill health is required to do more than submit a vague sick note from a doctor to escape accountability. It appears that an accused is required to present some credible evidence to the court that he or she is really ill and also that the illness is so serious that the accused is not able to attend court. This should not be difficult to do – as long as Zuma is really too ill to attend his trial.

Similarly, Zuma’s doctors will have little to worry about as long as their submissions to the court remain truthful and accurate. What they would want to avoid is to expose themselves to charges of unethical or unprofessional behaviour.

The stakes are high, because if Zuma and his lawyers fail to bring sufficient evidence to convince the court that there is a reasonable possibility that Zuma is too ill to attend, Zuma will be guilty of a criminal offence and could be sent to prison for up to three months. DM