Legal Teams Apply for Full Indictment in Corruption Case Within 10 Days
The legal teams for Jacob Zuma, the former deputy president, and Thint, the French electronics and arms manufacturer and supplier, applied on Friday morning for the Durban high court to order the state to deliver within 10 days a complete indictment, further particulars and supporting documentation.
Both Zuma and Thint argued that they were unable to prepare for the trial, in which they must answer charges of corruption and fraud, because they did not yet know what evidence will be led against them.
The Criminal Procedure Act and the constitution specify that an accused is entitled to know the charges to enable him to meet the case against him.
"The prosecution cannot have its cake and eat it," Kemp J Kemp, SC, for Zuma, told the court. "It cannot charge the accused after three years of investigation, take a year from there to get to a trial date which was agreed [on], and then claim that it still seeks more evidence before it is willing to go to trial.
"It changed Zuma's status to that of an accused - that has cost him the position of deputy president of the Republic of South Africa… It must therefore proceed with the prosecution."
Kessie Naidu, SC, for Thint, said that since the state had initially charged Thint alongside Shaik, had been investigating Zuma since 2002, and had charged him in June last year, it "must [in June] have had sufficient reason and information at its disposal to justify the decision" to charge the two. Why then could the state not come up with something better than the so-called provisional indictment, which was in any case mostly a "mirror image" of the charge sheet against Shaik?
At this point, Judge Phillip Levinsohn mused: "Well, perhaps the state should not have charged Zuma and Thint then, perhaps it was premature. But there are many political pressures at play in this matter, we know that."
Naidu said the state was hampering his client's preparation of its defence, flouting his client's constitutional rights to a speedy trial and that if the judge did not order the state to present a final indictment within 10 days, the judge would be effectively "licensing the state to abuse the Criminal Procedure Act".
Levinsohn, who is awaiting confirmation as deputy judge president of KwaZulu-Natal, will only hand down judgment on Tuesday. But by lunchtime on Friday a number of significant points had already emerged during argument and the discussion between Levinsohn, Kemp, Naidu and Billy Downer, SC for the state.
The application was related to the charges of corruption and fraud against Zuma, and corruption against Thint, for which the two are scheduled to be tried together in the Pietermaritzburg high court, starting on July 31.
Zuma and the French company were charged in June last year following the conviction and sentencing to 15 years' jail of Schabir Shaik, Zuma's erstwhile business adviser, by Judge Hilary Squires, who said he found that a "generally corrupt relationship" had existed between Shaik and Zuma. Shaik's appeal will be heard in the next 90 days by the supreme court of appeal.
Zuma was fired from his job as deputy president by President Thabo Mbeki. Thint had initially been charged with Shaik but the charges were dropped during the Shaik trial following a deal between the national prosecuting authority and Thint.
What emerged on Friday morning is that the trial is unlikely to start, as scheduled, on July 31. Or, to be precise, there will probably be a short appearance of the three accused (Zuma, Thint Holdings Southern Africa and its local operating company, Thint) on July 31. But then the state will in all likelihood ask for a postponement.
Second, the trial will in any case begin with a flurry of legal applications not related to the main charges. One of these applications, likely to be made by Thint's legal team, will be for the separation of the Thint and Zuma trials.
Another application could be for the quashing of the charges against all the accused on the basis that they will not be able to get a fair trial in terms of section 35 (3) of the constitution.
But whether the second application will happen depends to some extent on what Levinsohn decides on Tuesday.
If the judge granted the defence application, Downer said, the state would in any case unfortunately have to provide another "provisional" indictment (that would be amended and extended later). That was because the state, which had widened its ambit of investigation during the past nine months, had not yet completed its forensic work.The state had no choice in the matter, Downer said, because the investigation into Zuma and Thint had proved to be extremely complex.
Downer conceded that that the successful applications by Zuma, Michael Hulley, his attorney, and Julekha Mahomed, Zuma's erstwhile attorney, forcing the Scorpions to return documents taken during search-and-seizure raids in August - the Scorpions are appealing against these findings - had hampered the national prosecuting authority's preparations.
Downer also conceded that Shaik's appeal proceedings could have a bearing on the trial. It was for all these reasons that the state would also probably request a postponement on July 31.
Both defence teams said they did not want a postponement of the trial.
With acknowledgement to Jeremy Gordin and The Sunday Independent.