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[EXPLAINER] What are Jacob Zuma’s chances of a stay of prosecution?

The former president’s lawyers were given until 16 November to submit the application to bring to a halt his corruption trial that has faced numerous postponements.

The crowd who gathered to support former President Jacob Zuma is seen reflected in his glasses as he waits to speak after appearing on corruption charges at the Durban High Court on 6 April 2018. Picture: Ihsaan Haffejee/EWN.

DURBAN - Former President Jacob Zuma has until Friday to submit an application for a permanent stay of prosecution.

Zuma’s lawyers were given until 16 November to submit the application to bring to a halt his corruption trial that has faced numerous postponements.

Zuma last appeared in the Pietermaritzburg High Court on 27 July where his new legal team told KwaZulu-Natal Deputy Judge President Mjabuliseni Madondo they needed time to familiarise themselves with the case.

The former president is facing charges of fraud, corruption, racketeering and money-laundering related to the controversial multi-billion rand arms deal concluded in the late 1990s.

Zuma fired his long-time attorney Michael Hulley, while his rape trial advocate Kemp J Kemp went on retirement earlier this year.

Zuma’s new team of advocates consists of four senior counsels: Mike Hellens, Muzi Sikhakhane, Dawie Joubert and Thabani Masuku. He also has a junior counsel Mpilo Sikhakhane and attorney Daniel Mantsha as part of the strong team.

When Zuma appeared in July, Judge Madondo gave his legal team three months to familiarise themselves with the now 17-year-old case.

WHAT IS A PERMANENT STAY OF PROSECUTION APPLICATION?

This is an application that is brought before the court to halt a trial or other legal processes.

The stay of prosecution application is different and independent to one asking the National Prosecuting Authority (NPA) to review its decision to prosecute.

Zuma first considered asking the NPA to review its decision to prosecute him but he has since opted for a permanent stay of prosecution.

WHAT WILL ZUMA’S LEGAL TEAM ARGUE IN THEIR APPLICATION?

In July, Hellens argued that there would be three main pillars upon which their application will be premised:

1. Court/trial delays

One of the arguments expected to be made is that the trial against the former president has been delayed for so long that it is impossible for him to receive a fair trial.

The legal battle for the reinstatement of the case alone is nearly a decade in the making.

Constitutional law expert Pierre de Vos says this is likely to be one of the strongest arguments to be made, but Zuma’s contribution towards the matter taking long to reach finality will also be looked at.

“You have to look at the conduct of both the accused and the prosecution. If the accused person contributed to the delay, it will be more difficult for that person to argue that permanent stay of prosecution should be given.”

Zuma has been accused of a Stalingrad approach to this case.

2. There’s a political conspiracy against Zuma

In 2008 Judge Chris Nicholson set aside the National Prosecuting Authority’s decision to prosecute Zuma, finding that there was “political conspiracy” in the decision.

Nicholson’s judgment was, however, set aside by the Supreme Court of Appeals.

However in 2009, then NPA head Mokotedi Mphse dropped the charges, sparking the legal battle over the so-called ‘Spy Tapes’. These were intercepted telephone recordings between then Scorpions head Leonard McCarthy and then NPA head Bulelani Ngcuka discussing when to charge Zuma.

Part of their discussions was over whether they should charge him before or after the ANC’s 2007 Polokwane conference where Zuma was contesting then president Thabo Mbeki.

After a nine-year legal battle by the Democratic Alliance, the court set aside Mphse’s decision not to prosecute.

In March this year, then NDPP Shaun Abrahams announced that the prosecution against Zuma would go ahead citing “reasonable prospects of a successful prosecution”.

Professor de Vos says a recent Supreme Court of Appeal judgment might make it difficult for the former president to strongly use the political conspiracy argument.

“Even if you bring a prosecution for improper purpose, in other words, where there has been political meddling, that will not make the prosecution wrongful. As long as the ultimate purpose is to convict somebody and there is evidence to do so,” he says.

De Vos says even if Zuma’s legal team presents evidence of political interference in the matter, that on its own will not suffice.

3. Pre-trial irregularities/executive interference

In July, Hellens said the “Browse Mole” report that was authored by the then Directorate of Special Operations, also known as the Scorpions, had serious constitutional implications as his rights to privacy were infringed.

The 2006 intelligence report, that was leaked to the public in 2007, and sent anonymously to Cosatu showed that Zuma was illegally spied on.

De Vos says the courts will have to view all the evidence presented

“We don’t ask if there were any procedural irregularities. We ask if there were any irregularities that were of such a nature that the accused cannot get a fair trial. In other words, are the irregularities so much that the judge cannot weigh the evidence fairly,” de Vos said

If the court grants Zuma his permanent stay of prosecution, he will never face charges related to this matter.

But if the High court rejects arguments made by Zuma’s lawyers, they can still go to the Supreme Court of Appeal and, if necessary, the Constitutional Court to appeal the lower court’s finding.

The appeals would mean that it would be years before Zuma’s trial begins, if ever.