Stalingrad, re-invented: Jacob Zuma invokes the ghost of Justice Antonin Scalia, and the kitchen sink too

Former president Jacob Zuma’s lawyers have written to Judge Piet Koen, following his ruling that Zuma’s special plea application in his Arms Deal corruption trial should be heard virtually between 10 and 13 August and said in no uncertain terms that Zuma is opposed to the move.

Zuma has cited the fair trial rights contained in section 35 (3) of the Constitution and married this with references to US law in a move that indicates that Zuma is preparing to take this challenge to the Constitutional Court.

Leaning on US courts for support

In the US, the Sixth Amendment guarantees criminal defendants the right to a public trial without unnecessary delay, the right to a lawyer, the right to an impartial jury, and the right to know who your accusers are, often referred to as the right to confrontation.

“Virtual confrontation might be sufficient to protect virtual constitutional rights, I doubt whether it is sufficient to protect real ones,” reads a footnote in the Zuma papers, quoting the late US Supreme Court Judge Antonin Scalia.

At the time Scalia was commenting on a 2002 proposal to amend court rules to allow US courts to authorise virtual testimony “from a different location” in exceptional circumstances, at the discretion of the presiding judge.

Zuma’s legal team has argued that virtual presence, via the court’s preferred method of Microsoft Teams, does not match up to the constitutional requirement of presence, and say international jurisprudence is in their favour.

“Finally, serious doubt has been internationally cast on the appropriateness of virtual criminal proceedings,” they say.

In their latest legal submission, the Zuma legal team argues that directing Zuma to attend the hearing of his special plea application virtually would be going against Section 36 of the Constitution which says that rights can only be limited “to the extent that the limitation is reasonable and justifiable in an open and democratic society”.

“To do so would be unconstitutional and illegal, irrespective of the situation in a particular case, a particular date or the particular circumstance which may or may not prevail on 9 August 2021,” they argue in a short two-page submission to the court.

The submissions were made at the request of the court, which is due to resume next week. Zuma intends to argue that prosecutor Billy Downer is biased and should not be leading the prosecution, but his lawyers are adamant that their client must be physically present for this argument.

They also argue that Zuma has a right to observe the proceedings “in real-time, like all other accused persons in the same position. That’s why other criminal trials were postponed.

“Some of his close relatives and/or supporters who would have been present in a public and ordinary courtroom may not have access to electronic devices or even television broadcasts. In any event, we are now at Level 3, the unrest has subsided and the courts are functioning as before.” 

The Zuma legal team has also argued that it remains difficult for them to consult with him while he remains detained in the Estcourt Correctional Centre.

In effect, his legal team has given Judge Koen some extra homework, says attorney Benedict Phiri, commenting on the matter. 

“They are very aware that Section 39 of the Constitution says, basically when a court is called on to interpret a right in a bill of rights… then the court must have regard to international law and may take into account foreign law. So obviously Zuma’s lawyers have litigated in the Constitutional Court many times and what the Constitutional Court does do, a lot, especially in human rights type law, is refer to international law.

“For instance, Canada is a favourite jurisdiction of the Constitutional Court, Australia is a good jurisdiction and a large part of our Constitution was taken from Canada, so they refer a lot to foreign law.

“They are prompting the judge. They are saying, you must do the work,” Phiri says.

He believes this early reference to US law could be part of Zuma’s preparation to argue this matter in the country’s highest court.

“This is a standard right for an accused in criminal proceedings almost everywhere in the world. Even in the European Court for Human Rights or the German courts, which have really done a lot of work around this, it is accepted that unless there is a really exceptional reason an accused should actually be in court and present.” 

Attorney Matodzi Ratshimbilani agrees that Zuma is probably invoking US case law in preparation for a Constitutional Court battle, but says it will be difficult for him to approach the court at this stage. Instead, he believes that if Judge Koen decides to go ahead with the virtual hearing, Zuma could raise this in an appeal against the final outcome, if he is found guilty.

“It is a trial within a trial. What will happen is that the judge will make a ruling on the trial within the trial. If he does not dismiss the case, the trial will proceed and they can use this later for grounds for appeal,” Ratshimbilani says.

He adds that South African courts can consider legal issues tested outside of our borders, but foreign law “can have a persuasive effect as opposed to binding effect”.

However Ratshimbilani and Phiri agree that Zuma’s case does raise some novel legal questions that relate to how criminal proceedings should be conducted in a pandemic. 

“If Judge Koen does not reverse his directive then we certainly could be in a situation where we end up at the Constitutional Court. Specifically, [Zuma’s] talking about Section 35 (3) e, which is the right to be present when tried. That particular right doesn’t have any flesh to it in the sense that we haven’t had a direct attack on it or a direct request to interpret that right.

“Because it has always been just taken for granted that the accused will always be present in court. No one had foreseen that we would have Covid or the current political climate where the accused might not be in court for any number of reasons. So it will definitely end up in the Constitutional Court because that would require the court’s direction about how to interpret that particular right in this context,” Phiri says.

But Ratshimbilani warns that Zuma’s legal team might not be comparing apples with apples, since the quoted text is from a 20-year-old directive.

“The pronouncement was made 20 years ago and they were talking about a two-way video. It was a very different technology from what we have now where everybody can basically participate real-time on a call. I doubt very much that it is still the position in the US; I imagine it would have improved over time.

“I think the facts are distinguishable. They talk about the confrontation clause and that is the idea that when someone accuses you they must be there so that you are able to confront them. In this case, we are not at a stage where the accusations are being laid against him. It’s a trial within a trial, basically arguing a legal point,” Ratshimbilani says. 

Technology has advanced in this time, as have the circumstances under which video testimony is used internationally. Globally, and locally, video testimony is often used where child witnesses testify against their abusers. In local courts virtual platforms have also been used for bail applications and for routine postponements, to avoid the cost of transporting suspects when all parties are aware that the case will not go ahead. 

Though 20 years old, Scalia’s words have been often quoted in recent academic articles about the role of virtual testimony in the Covid-19 period, a situation that has forced legal systems around the globe to adapt.

NPA: ‘No good reason’ not to go virtual

Meanwhile, the National Prosecuting Authority (NPA) has stuck to its guns, arguing that the trial “can and must proceed” on August 10.

“A virtual hearing of oral argument of the special plea on 10 August is possible and will be satisfactory in every respect. The parties and their legal representatives and the public (through the broadcasting of the live feed) will be able to observe the proceedings. 

“As with the previous hearing, arrangements can be made with the Estcourt Correctional Centre for a link for the first accused [Zuma] and that he may consult his legal team, both in the run-up to the hearing and during the hearing.”

The NPA says it has been in contact with the “security services”, but does not seem convinced about their ability to keep any gatherings outside court peaceful.

“As to an in-person hearing, the security services have advised the NPA that if an in-person hearing were to take place on 10 August they will take all reasonable steps to ensure that it happens peacefully. They have not given any assurance they will succeed.

“Supporters of the first accused are presently being mobilised on social media to gather in their numbers in Pietermaritzburg on 10 August,” the NPA writes. It also raises concerns about the rising Covid-19 numbers in KwaZulu-Natal, saying: “There is no good reason not to opt for a virtual hearing of the oral arguments on 10 August and to assume the risks attendant on an in-person hearing.”

The NPA has left the door open for any oral argument, saying that if the court decided to refer any issues raised in the special plea to oral argument, “the hearing format can be revisited”. DM 

Dianne Hawker is a News Editor at Newzroom Afrika and has been a legal journalist for more than 15 years.