Zuma tries another dodge as his advocate questions high court ‘philosophy’ in leave to appeal ruling

Advocate Muzi Sikhakhane told judges Jerome Mnguni, Esther Steyn and Thoba Poyo-Dlwati they had made “errors in law” when refusing to grant an application for a permanent stay of prosecution to his client Jacob Zuma. The judges had heard the original case in October in the same place, the Pietermaritzburg High Court.

Zuma was not in attendance as his counsel addressed the full bench of judges – who were told by Sikhakhane they had afforded too much weight to considering the seriousness of the charges faced by the former president.

Not balancing the seriousness – which Sikhakhane did not dispute – with the “common cause” political interference in the case was a serious violation of Zuma’s constitutional rights, he said.

“The appeal court may well hold a different judicial philosophy to that one. They may not excuse actions that violate the Constitution in their weighing of the evidence,” said Sikhakhane.

The integrity of the prosecution had been prejudiced, he said, and later invited the judges to employ “intellectual rigour and honesty” in considering granting Zuma’s leave to appeal to the Supreme Court of Appeal.

“Intellectually, if you look at the jurisprudence that [guided the decision to refuse the permanent stay], another court could find differently...

“When you have to weigh any nature of any offence, will it always be the case that courts will see constitutional violations the way you did? It is really possible that a higher court may be more offended by a constitutional violation and may give it more weight,” said Sikhakhane.

Zuma and co-accused, French arms manufacturer Thales, filed their papers earlier this month to challenge the denial of their permanent stay applications.

The case, which has been in and out of courts for well over a decade, relates to the country’s R60-billion arms deal, concluded in 1999.

The state contends that Thales bribed Zuma via his former financial advisor, Schabir Shaik, in order to protect the multi-national corporation from a probe after it secured a R2.6-billion contract to supply combat systems to the South African Navy.

According to the state, Thales paid Zuma, who was deputy president at the time, R500,000 a year for political protection. Shaik was found guilty of two counts of corruption and one of fraud in 2005 and sentenced to 15 years in prison. He was released on medical parole in 2009.

Zuma not being charged with Shaik in 2003 is also a bone of contention for his legal team, with Sikhakhane repeatedly arguing this to be another violation of Zuma’s rights to a fair trial.

The repeated delays in affording Zuma a swift trial – the sole responsibility of the National Prosecuting Authority – had violated his client’s rights, said Sikhakhane.

He said Shaik’s conviction was viewed with glee by state prosecutors, who saw it as an opportunity to pursue the former president.

Sikhakhane again brought up the 2009 decision by former acting national director of public prosecutions Mokotedi Mpshe to discontinue the prosecution of Zuma based on the so-called “spy tapes”.

That decision was eventually overturned by the Supreme Court of Appeal (SCA), and was addressed by judges Mnguni, Steyn and Poyo-Dlwati in their October denial.

“The SCA has ruled on this, our hands are tied,” Steyn told Sikhakhane on Friday.

Thales has submitted a conditional application with the High Court for leave to appeal to the SCA, the condition being the refusal of the Constitutional Court (ConCourt) to hear its case.

In his answering affidavit opposing Zuma’s leave to appeal, senior prosecutor Billy Downer said no compelling reasons had been made to suggest another court would rule otherwise.

Downer further said the state wrote to Zuma on 4 November “inviting him” to join Thales’s ConCourt application for a direct appeal. Zuma did not respond to the letter, nor had he approached the ConCourt, according to the affidavit.

The invitation to approach the ConCourt, according to Downer, was made because Zuma’s advocate, Thabani Masuku, had stated that the president would approach the apex court should he be denied leave to appeal with the SCA, or should he be granted leave to appeal and the SCA dismissed his appeal. It was also in the interests of justice, said Downer, that the permanent stay matter be finalised.

Should Zuma not directly appeal to the ConCourt, said Downer, it would be “further evidence” of the former president’s delaying tactics, and the state would argue so on Friday.

“Consequently, the state will argue that should the High Court find that his intended appeal lacks reasonable prospects of success, the court should further find ... [that] there is no other compelling reason why the appeal should be heard – on the contrary, Mr Zuma’s continuation of his Stalingrad defence tactics is a compelling reason why the appeal should not be heard,” said Downer in his affidavit.

Advocate Andrew Breitenbach started the state’s opposing arguments just before 1pm. DM