Former African National Congress (ANC) spokesman
Carl Niehaus said after
Zuma last appeared in court on February 4 it was the ANC president’s 38th court
appearance since he was first charged. On top of that, the Scorpions
investigation of his role in the arms deal has been public knowledge since “at
the latest November 2002”,
Zuma says in court papers.
The publicity and possible resultant
prejudice is therefore seven years old *1.
A court has already struck the case off the roll once on the grounds that the
Scorpions were taking too long. The possibility of a permanent stay of
prosecution due to an unreasonable delay was dealt with by the Constitutional
Court in terms of the interim constitution in the Sanderson case.
The relevant provision is slightly different in the final constitution. Section
35(3)(d) of the final constitution provides that accused persons have a right to
a fair trial which includes “to have their trial begin and conclude without
unreasonable delay”.
The Criminal Procedure Act says a court may make any order “it deems fit” when
there has been unreasonable delay.
Criminal law expert Stephen Tuson, of the Wits Law Clinic, says that there have
been a few cases where prosecution was permanently stayed on this basis, but
these have generally occurred in the lower courts.
In Sanderson’s case, Constitutional Court Judge Johann Kriegler refused an
application for a permanent stay and set out the factors to be considered in
determining whether there had been unreasonable delay. Of particular
significance to Zuma were three of Kriegler’s findings.
Zuma has often been accused by the media and opposition parties of trying to
avoid his trial. But Kriegler said that in order to benefit from the right, it
was not necessary for the accused to genuinely desire to go to trial. However,
the accused “should not be allowed to
complain about periods of time for which he has sought a postponement”.
It is likely the NPA will argue that at
least some of the delays were Zuma’s fault such as his
legal challenge to the NPA’s search and seizure warrants and the application to
have the decision to prosecute set aside.
Finally, of significance is Kriegler’s statement that a permanent stay of
prosecution is “radical,
both philosophically and sociopolitically”,
and will “seldom be warranted
in the absence of significant prejudice to the accused”.
POLITICAL INTERFERENCE
There has never been a case in SA
where prosecution has been permanently stayed because of political interference
in a decision to prosecute.
Tuson says there have been a few cases where charges have been dropped before
trial, “usually on the grounds that the prosecution was
patently malicious and totally
without merit *2”. But he says it is
very unusual for a judge to
intervene prior to a trial.
In the light of what is publicly known, Zuma could make the following arguments:
SELECTIVE PROSECUTION
Zuma’s argument on this score appears to be that his case has been treated
differently to others.
In his affidavit before Judge Chris Nicholson, Zuma says he had a right to “be
treated no worse than other members of our society” and he believed that he had
been subject to “special treatment to my
detriment *3”.
He says the charges against him under the Income Tax Act “typify the improper
convict-Zuma-at-all-costs leitmotif which permeates the NPA’s prosecution”.
Zuma also says the NPA had “resorted to spying on me using intelligence
gathering methods not authorised by any competent body”.
In the Supreme Court of Appeal judgment overturning Nicholson, Judge Louis Harms
said that the motive for a prosecution was irrelevant, as long as its purpose
was to ensure a prosecution. So, even if there was overzealousness in Zuma’s
case, it would be irrelevant as long as the purpose was to bring him to trial
and convict him.
But this version of the law is based on cases decided before the constitution.
On Harms’s version a racist prosecutor who chose to prosecute Africans over
other races where there was similar evidence against them, would be irrelevant.
Under a constitutional order, it could be argued that such behaviour was
discriminatory. However, Zuma will probably have to show that others, similarly
placed to him, were not prosecuted even though there was
a similar case against them *4.
TIMING
Zuma’s argument seems to be that the various decisions to prosecute were
timed to ensure that he was not elected president of the ANC and later president
of SA. They were therefore not made to ensure prosecution.
Zuma argues that when former NPA boss Bulelani Ngcuka announced that there was a
prima facie case against him, but that he would not be prosecuted,
this was a stratagem *5 to
ensure a permanent cloud over Zuma’s head which would effectively take him out
of the race to be president.
When acting NPA boss Mokotedi Mpshe decided to charge him the second time, this
was a few days after he was elected president of the ANC at Polokwane.
To support this, Zuma says that there was essentially no new evidence in the
hands of the NPA when it reversed its previous decision. Why then did it do so,
is the question Zuma asks. But experts say that in order to succeed on this
argument, Zuma will have to show that, timing aside, the NPA had no intention of
prosecuting him at all.
UNCONSTITUTIONAL INSTRUCTION
The constitution requires prosecutors to exercise their discretion
independently. If Zuma could show that former president Thabo Mbeki had
instructed Mpshe to prosecute him and that he had not exercised his discretion
independently, the decision would have been unconstitutional.
TRIAL BY MEDIA
After Zuma’s February 4 appearance, ANC lawyer Asif Latib said Zuma had
already been “tried and convicted” by the media. Certainly, the case has
received huge media attention. But again,
a stay of prosecution on this basis would be new in SA.
Advocate Michelle le Roux, who practised for some time in the US where trial by
media issues often arise, said: “The principle is that the amount of media
coverage makes it impossible for the fact-finder in America, the
jury *7 to set aside what they’ve heard and read in the
media and evaluate the evidence impartially.”
But Le Roux said in the US, this usually came up in the context of venue
selection for a trial and not to stop the prosecution entirely.
For a trial by media argument to succeed in SA, Zuma would have to show that the
media coverage was so widespread and so detailed that there is
not a single judge impartial enough to deal with
the case.
With acknowledgements to Carl Niehaus and Business Day.
*2In this case the prosecution and investigation teams have
proven in the High Court, Supreme Court and Constitutional Court that the
charges are totally with merit.
*3It was only Pinnoccio Bulelani Ngcuka and his tame or
fake senior counsel who ever said otherwise.
At the time this was to his advantage, not his detriment.
Then he got big and brave.
And Thabo was only a little fellow, in stature and brain power.
*4Zuma, like the chacma baboon that he is, got caught with
his hand in the gourd.
Thabo was slightly cleverer and ensured a deal with President Chirac that
whatever assistance the French investigators gave their South African
counterparts when investigations Thomson-CSF, that this would not extend to
prosecuting Thabo, only Jacob and Schabir and Alain Thetard.
When Thabo saw how easy this was to get working, soon the entire French effort
was called off.
And the French investigating magistrate was deep in the pooh.
All formal requests for the NPA to investigate Thabo has simply been ignored by
them.
They subsequently claim they have no manpower.
But it is their constitutional obligation to investigate, even if only an
preliminary investigation is registered.
But the baboon is still firmly caught in the situation of his own making.
*5A stratagem indeed, to let the baboon free and thereby to
ensure that his party and his government were not embarrassed.
*6This is the crux of this biscuit - the jury.
But in the RSA there is a different system now - bless the old National Party
for that.
In this country there is a judge and two assessors - all legally qualified
people (okay, except Chacma Mkhize).
Indeed, in this case the Judge President is considering a full bench of three
judges.
A lot of hot air and wasted effort when Judge Hilary Squires could have done it
all in one fell swoop in 2005/6.