A case of déjà vu

Picture Leon Lestrade. African News Agency/ANA

A delay in charging, a delay in going to trial, “significant pre-trial irregularities” based on the Browse mole report and the “spy tapes”, and “executive interference” at the highest level with prosecutorial independence.

These are the four pillars upon which Jacob Zuma’s new legal team, headed by advocate Michael Hellens, plans to build a case for a permanent stay of prosecution in the interminably long-running matter of 783 counts on 16 charges of corruption, fraud, racketeering and money laundering related to the arms deal.

According to Mr Hellens, speaking outside the Pietermartizburg High Court on Friday July 27 where Mr Zuma appeared for the third time to answer charges since they were reinstated by the North Gauteng High Court in 2016, he and his team would bring a “formidable application” in this regard.

The matter has been on the go, as pointed out by lead prosecutor Billy Downer, for 17 long years, and the State is ready to proceed.

But despite his frequent protestations to the contrary over the years, Mr Zuma clearly is not, witnessed by Mr Hellens’ successful application for a continuance until November 16, to allow the new legal team to study “every document” related to the matter, in preparation for submitting the application for a permanent stay of prosecution.

This despite Mr Hellens suggesting in his submission in court, that the “Stalingrad Strategy” adopted by Mr Zuma’s previous counsel, Kemp J Kemp, was a thing of the past.

Do these four pillars constitute a substantive case for a permanent stay of prosection?

The allegations of delay in charging and delay in going to court must be read together, as they are inter-related. Mr Zuma was initially charged in 2007, but after making “representation” to the National Prosecuting Authority (NPA), acting NPA head, Mokotedi Mpshe, withdrew the charges on April 1 2009, citing, guess what?

“Significant pre-trial irregularities” based on the Browse mole report and the “spy tapes”, and “executive interference” at the highest level with prosecutorial independence.

Since then, various organisations with a proclivity for the rule of law and a deep-seated commitment to justice, have fought tooth and nail to get those charges reinstated.

That battle finally succeeded on April 29 2016 when North Gauteng High Court Deputy Judge President, Aubrey Ledwaba, and a full bench concluded: “This court finds there is no substance in submissions of respondents. We find that Mr Mpshe found himself under pressure, and consequently made an irrational decision. Mr Mpshe ignored the importance of his oath of office.”

That Mr Zuma, for 15 years, used every conceivable means in the book to avoid his day in court, at a cost of some R15 million to the taxpayer, is a matter of public record.

That judgment was upheld by the Appelate Division in October 2017, opening the door to the reinstatement of charges by NPA head, Shaun Abrahams.

Mr Abrahams dithered for some time in reinstating the charges, but that can hardly be construed as a delay in going to trial, since he had acceded to Mr Zuma’s request for the opportunity to “make representation” as to why the charges should not be reinstated.

Any further “delay” can be attributed to Mr Abrahams appointing a team of prosecutors to review the entire case, along with Mr Zuma’s new representations, and to advise him on whether or not the charges ought to be reinstated.

So much for the delay argument.

The allegations of “significant pre-trial irregularities” based on the Browse mole report and the “spy tapes”, and “executive interference” at the highest level with prosecutorial independence, are where it gets interesting.

A central pillar of the argument advanced by Mr Zuma’s counsel in defence of Mr Mpshe’s decision to withdraw charges related to prosecutorial misconduct.

According to the (illegaly) acquired so-called “Spy Tapes”, Scorpions head, Leonard McCarthy, and then NPA head, Bulelani Ncuga, colluded over the timing of preferring charges against Mr Zuma – the prosecutorial misconduct at the heart of Mr Mpshe’s decision – which compromised Mr Zuma’s constitutional right to a fair trial.

Judge Ledwaba’s original judgment, however, found that while there may have been prosecutorial misconduct on the part of Mr McCarthy, this did not in any way compromise Mr Zuma’s right to a fair trial, nor did it negate the 783 criminal charges which he faced, and still faces.

Which leaves only the matter of “executive interference” at the highest level.

In considering the substance of an afadavit by the NPA’s Willie Hofmeyr, in which then President Thabo Mbeki is implicated, the judgment reads: “Mr Hofmeyr did not provide facts from which he or this court could draw such damning conclusions against any of the individuals mentioned. He speaks of his investigations, the ambit and nature of which are not disclosed. He refers to rumours and tells us what he believes. He makes statements such as ‘as far as I am concerned’. This is a wholly unsatisfactory approach. He refers to unconnected political activity which in my view was resorted to in order to create atmosphere against Mr McCarthy and those he considered to be co-conspirators.”

Perhaps Mr Zuma will get his long-awaited day in court after all.