Arms Deal saga: Will High Court grant Jacob Zuma stay of prosecution?

From allegations of political interference to claims of leaks in the media, and pre-trial irregularities, former President Jacob Zuma has in the past provided several reasons to stave off the corruption charges against him.

FILE: Former South African President Jacob Zuma appeared in the Durban High Court on 8 June 2018. He is charged with 16 counts that include fraud‚ corruption and racketeering. Picture: Felix Dlangamandla/Pool

JOHANNESBURG – Former President Jacob Zuma is due to appear before the Pietermaritzburg High Court on Monday morning for an application for a permanent stay of prosecution from 16 charges of fraud, corruption, racketeering and money-laundering related to the controversial multi-billion rand arms deal concluded in the late 1990s.

In November 2018, Deputy Judge President Mjabuliseni Madondo postponed Zuma’s case to 20 May after his new legal team was given time to submit the application to get charges against the former president permanently dropped.

Zuma faces twelve charges of fraud, one of racketeering, two of corruption and one of money laundering in connection with 783 questionable payments totalling more than R1.2 million he allegedly received from his former financial advisor and convicted fraudster, Schabir Shaik.

One criminal law expert believes there’s no certainty, at this stage, that the High Court will grant Zuma a stay of prosecution from facing trial over the long drawn-out case.

An adjunct criminal law professor at Wits University, Stephen Tuson, said the delays in the case - which culminated with the Supreme Court of Appeal (SCA)’s ruling in October 2017 that the original decision to charge Zuma in 2009 should stand - could potentially count against Zuma’s favour.

Tuson said Zuma’s new legal team had the daunting task of convincing the High Court's panel of three judges due to hear the application that the long delays in his trial and claims of a political conspiracy against him, as well as pretrial irregularities over allegations of unlawful spying on Zuma, had substantial prejudice to the successful prosecution of the case and his right to a fair trial.

“When looking at trial delay, the court will look at whose fault is it for the delay,” Tuson said. “If the accused continuously asks for postponement after postponement and says they are not ready, the court will say it has been delayed and there has been a long time but the cause of the delay is your own conduct. And that would not be a good reason to stay the prosecution.”


But what’s the difference between a stay of prosecution and making representations to the National Prosecuting Authority (NPA)?

Following the SCA ruling in 2017, Zuma's lawyers were given an opportunity to make representations for the withdrawal of criminal prosecution to the former National Director of Public Prosecutions (NDPP) Advocate Shaun Abrahams.

However, the same arguments posited about the long delays to bring Zuma to trial, allegations of a political conspiracy and pre-trial irregularities were rejected by Abrahams on 16 March 2018, with the then NPA head stating that a trial court would be “the most appropriate forum for these issues to be ventilated and to be decided upon”.

Tuson said making representations to the NDPP is made with an intention to withdraw criminal charges based on arguments put forward in law and in facts.

“Making representation is where you address written arguments to the NDPP giving factual and legal reasons why you feel the charges should be withdrawn,” Tuson explained. “You’re asking the national director to exercise their discretion and to basically consider the question: is there a prosecutorial office and reasonable chance of obtaining a conviction?”

With a permanent stay of prosecution, Tuson said Zuma’s legal team would need to demonstrate to the High Court that it would be impossible for him to have a fair trial due to the time that has lapsed to prosecute him over the arms deal saga.

“If there’s been an undue or unreasonable delay in the prosecution of a matter, the accused can bring to the attention of the presiding offer this excessive delay and argue that their rights to a fair trial have been violated and that the delay is not justified, not excusable and for all of these reasons and the prejudice that’s caused, the magistrate should say that there has been an unreasonable delay and that the prosecution should be stopped. And in terms of that legislation [Section 342A of the Criminal Procedure Act], the prosecution can only be reinstated if there is a certificate from the NDPP.”

However, Tuson cautioned that for a court to grant an accused person a permanent stay from prosecution isn't easy and would be of last resort to the courts because Zuma faces serious criminal charges against him.

He said the High Court had several options available to it to decide on Zuma's prosecution going forward.

“The court doesn’t have to stay the prosecution permanently, the court has options. It can order the matter to proceed and be finished or to commence on a certain date. It can order certain investigations to be or whatever the case may be.

“There are options available to him [Zuma] in court, but the ultimate sanction would be to permanently stay the prosecution and say because of the prejudice, you may not prosecute him on these charges again,” Tuson said.

Although, Tuson said he didn't consider Zuma’s application to be a foregone conclusion.

“It’s at least a 50/50. There’s no certainty that the court will stay the prosecution. The court is very reluctant to stay a prosecution, particularly for serious offenses. Justice must be done and must be seen to be done, and if people have been charged with offenses, and there is prima facie evidence and there’s a factual case to be made, that matter should be ventilated in court. It should not be stayed and it will be an exceptional order before a court to stay a prosecution.”

Meanwhile, political analyst Ralph Mathekga said Zuma had nothing new to argue before the Pietermaritzburg High Court on Monday as he had exhausted all his legal options.

He said the arms deal case against Zuma had dragged on for far too long and it would be more difficult for the former statesman to be granted a permanent stay from facing trial, especially considering the Stalingrad strategy employed by his legal team over the years to exploit every single legal loophole to stall the case.

“He tried all other avenues and he’s almost exhausted all other avenues, it will even be more difficult for him to even win this one for a permanent stay. One wonders exactly which reasons will he provide that were never aired before,” Mathekga said.

He added: “He’s not an innocent party regarding the delays in terms of the prosecution. Had he not tried to delay the case, maybe it would have been before court more than five years ago or six years ago, but it is because of his own litigation that there was never a case against him. He cannot orchestrate delays and seek to benefit from saying that the delays are harming him while he caused those delays.”

With the Pretoria High Court ruling in December 2018 barring the state from footing the bill for Zuma’s legal fees, Mathekga said Zuma could successfully crowd found for this case from his supporters as he still had a lot of support on the ground in some areas in the country.

But what happens if the Pietermaritzburg High Court rejects Zuma’s application?

Mathekga believes Zuma would most likely carry on with the Stalingrad approach of avoiding getting his day in court, even though he has in the past said he had been denied his day in court to fend off the charges.

“If it rules otherwise, they will further petition a higher court [the SCA and Constitutional Court] and it takes longer. I think the judges are going to weigh as to whether all of this is in the interest of justice or the abuse of the justice system. At some point, some of the frivolous litigation of appealing and appealing it is something that has already been exhausted with a clear intention just not to lose,” he said.