OPINION: Ground zero, Mr Zuma

Norman McFarlane

By the time you read this, we will be no clearer on whether or not Jacob Zuma was successful in his application for a permanent stay of prosecution for the 16 charges he faces in relation to the arms deal: one of racketeering, two of corruption, one of money laundering, and 12 of fraud.

The charges relate to 783 payments which Mr Zuma’s then financial advisor, Schabir Shaik, made to him on behalf of French arms company, Thint.

Mr Shaik was convicted in 2005 on fraud and corruption charges for his efforts, and sentenced to 15 years, but as we all know, he served only two years and four months, followed by a lengthy period in hospital, before being released on medical parole in 2009, because he was “terminally ill”.

Ten years later, Mr Shaik is, by all accounts, a regular visitor at some of Durban’s finest golf courses, where he is presumably exercising in order to keep at bay his “terminal illness”.

There is an inescapable logic in the notion that if Mr Shaik – the corruptor – could be found guilty on fraud and corruption charges for facilitating, on behalf of Thint, the payments to Mr Zuma – the corruptee – then Mr Zuma should be found guilty on all or some of the 16 charges he faces.

It’s that pesky number, 783, which ties Mr Shaik’s guilt to Mr Zuma’s alleged malfeasance: Mr Shaik was found guilty of making 783 payments to Mr Zuma.

Mr Zuma faces 783 counts of racketeering, corruption, money laundering, and fraud.

Might that have something to do with why Mr Zuma has filed an application for a permanent stay of prosecution, the matter before the Pietermaritzburg High Court today?

What would be the implications of Mr Zuma’s application being upheld?

At a superficial level, it would mean that the charges against him would be finally withdrawn, and Mr Zuma would walk away scot-free, despite the National Prosecuting Authority (NPA) insisting that it has a winnable case.

But it goes further than that, because the basis of Mr Zuma’s application is largely built on arguments that have been previously ventilated in his tortuous attempts to avoid the day in court which he has, in the past, insisted he wanted.

Former National Director of Public Prosecutions (NDPP), Shaun “The sheep” Abrahams, who, when faced with mounting pressure to proceed with the case against Mr Zuma when the Supreme Court of Appeal (SCA) ruled that Mr Zuma must stand trial, allowed the accused time to “make representation” by January 31 last year, as to why he should not answer to the charges.

Widely seen as a delaying tactic by Mr Abrahams, the surprise outcome was a decision to proceed with the matter, because Mr Zuma’s representations focused on the irrational decisions made by former national directors, prosecutorial misconduct, impropriety, allegations of prosecutorial manipulation, fair trial abuses, and deliberate leaking of information to the media.

This should have come as no surprise, because these are largely the arguments used by Mr Zuma in every preceding court action in relation to the matter of the charges he faces.

These too are the arguments that the SCA dealt with in great detail in its judgment that set aside then acting NDPP, Mokotedi Mpshe’s, 2009 decision to withdraw all charges against Mr Zuma, on the grounds that Mr Mpshe’s decision was irrational.

It is worth noting that the SCA laid out in unchallengeable detail why that decision was irrational.

Watching proceedings in the Pietermaritzburg High Court on Monday, it is evident that Mr Zuma’s lead counsel, Muzi Sikhakhane, is determined to revisit all of these by now, frequently rejected, arguments in pursuit of a permanent stay of prosecution.

His case is based on three pillars:

the long delays in getting the case to trial, considering that more than a decade has elapsed since the case was first brought against him;

a political conspiracy lies at the heart of the NPA’s determination to prosecute Mr Zuma and;

pretrial irregularities, including unlawful spying on Mr Zuma as was evidenced in the leaked Browse Mole report in 2006.

These are in summary, the very legal arguments that have been used in the past by Mr Zuma’s various legal teams. And in each instance, these arguments have failed to convince the courts that Mr Zuma ought not to stand trial.

In fact, on more than one occasion, the courts have averred that even were there to have been political motivation in the timing of proffering of the initial charges, that would not in any way compromised Mr Zuma’s right to a fair trial, and that such assertions about political manipulation ought to be dealt with in the course of Mr Zuma’s trial, rather than as a delaying tactic to avoid prosecution.

The “justice delayed is justice denied” argument is, quite frankly, hypocritical, considering the public assertion, enunciated by Mr Zuma’s lead counsel Kemp J Kemp in 2008, that he would adopt a “Stalingrad strategy” using every legal means at his client’s disposal to delay proceedings.

Aside from the fact that this argument has previously been deployed with no success in various hearings related to the matter at hand, the bench will inevitably look carefully at who caused the interminable delays in each instance, before arriving at a decision.

That the overwhelming majority of applications for continuance and other delaying tactics in the last 12-odd years were precipitated by the defence, does not bode well for Mr Zuma’s chances of success in his application for a permanent stay of prosecution.

Despite the defence’s determination to continue with the “Stalingrad approach”, if the court strikes down Mr Zuma’s application for a permanent stay of prosecution, its judgment must be meticulous to avoid having to grant the appeal that will inevitably emerge.