JZ and His Day in Court - Reprise

Firstly, apologies for the absence. Life and stuff happens.

This post harks back to my original JZ and His Day in Court.

I read this IOL article and felt it is important to echo it here ...

Just who is stalling the Zuma trial?

Karyn Maughan
3 February 2009

ANC President Jacob Zuma's lawyers have proposed August 12 as the date for his latest - and potentially last - court bid to quash the fraud and corruption case against him, a key part of which will be his often repeated complaint that his trial has been characterised by "unreasonable delays" by the National Prosecuting Authority (NPA).

The NPA, however, claims the accusations are nonsense and Zuma is responsible.

So who really is to blame?

The State's fault

The Battle over the Warrants

It took three years for the NPA to win the right to use evidence gathered in its 2005 raids on Zuma and his attorneys, but Zuma's team insists its battle over the legality of the Scorpions' warrants was a matter of principle that had to be fought.

Zuma has repeatedly rubbished suggestions that he was using the warrant dispute to delay his trial. He told supporters outside Pietermaritzburg High Court last year: "I want to make it clear that I am not delaying the start of the trial. When I told the NPA that I was ready to appear in court, the NPA was not ready.

"Instead of taking me to court, they started raiding my homes and offices. I am now being accused of applying delaying tactics when I am exercising my right."

He also questioned why the NPA was "suddenly complaining about delays, while it had investigated me for more than seven years".

In 2006 Judge Herbert Msimang struck the case against Zuma from the roll, finding that the NPA had charged Zuma too soon and failed to "factor the inherent delays into their headstrong decision to prosecute".

Msimang suggested the state had hurtled into prosecuting a highly complex case with little or no regard for its ability to succeed, resulting in the case "limping from one disaster to another".

Msimang's words, though largely overtaken by events, have become a mantra for Zuma's supporters, including Judge Willem Heath - a key legal strategist for Zuma.
In a newspaper article, he argued that the application in Zuma's first legal wrangle with the NPA - to overturn the August 2005 warrants - was "pertinently brought to protect the right to attorney-client privilege".

During Zuma's unsuccessful bid to have the Scorpions' warrants invalidated, it emerged that neither Zuma nor his lawyers had ever identified any of the documents seized as subject to attorney-client privilege.

Zuma's advocate, Kemp J Kemp SC, told the Constitutional Court Zuma's bid to challenge the warrants was about fighting the constitutional violations he had suffered.

Kemp said Zuma's legal team was concerned that, should the State's "unlawful" raids not be reined in by the court, his attorney and defence witnesses would also be vulnerable to search-and-seizure operations.

Kemp denied Zuma's purpose in suing the State amounted to a delaying tactic. "If we had wanted to do that, we would not have brought this application. We would have sprung this on them on the first day of trial. Do you have any idea what delays that would have caused, especially if we had won the point and the State had to go on appeal?" he said.

The Mauritian Documents Dispute

Zuma's legal team maintained its "matter of principle" argument during its failed attempt to stop the NPA from even requesting the originals of documents used to convict Shaik from Mauritian authorities. The 13 documents include the 2000 diary of former Thint CEO Alain Thetard, which detailed a meeting between him, Zuma and Shaik at which a R500 000-a-year bribe for Zuma was allegedly discussed.

Kemp told the Constitutional Court that Zuma wanted the right to cross-examine witnesses connected to the documents - including lead prosecutor Billy Downer. Zuma would only be able to do so if the state was forced to use copies of the documents they sought from Mauritius, rather than their originals.

According to Kemp:

"We contend that the copies were brought here in an improper way, that the NDPP (National Directorate of Public Prosecutions) got its hands on them in an impermissible manner. We have a fair idea of what went on, but we can't present that to the court. If the State does not call witnesses, we cannot cross-examine them."

While Downer has come under repeated attack from Zuma and his corruption co-accused, French arms company Thint, over the allegedly "unlawful" way he obtained copies of the documents, these accusations have found no favour with the courts.

But who is to blame?

Zuma's legal team is preparing to appeal against the Mauritian Supreme Court's ruling that he was not entitled to get involved in Thint's court bid to stop the documents from being handed over to the state.

Under Mauritian law, requests for legal assistance from other nations may be denied if the evidence they relate to is to be used as part of a so-called "political trial".

Despite Zuma's claims that the documents were being sought as part of a politically motivated bid to thwart his presidential ambitions, Mauritian Supreme Court Judge Rehana Mungly-Gulbul said he would not be allowed to intervene in the NPA's application.

While Zuma claimed he was the victim of a plot orchestrated by then president Thabo Mbeki and axed NPA head Vusi Pikoli, Mungly-Gulbul said Zuma had not shown "good cause" as to why he should be allowed to intervene.

"Whatever bona fide belief Zuma may hold, to the effect that he is being persecuted and his trial is politically motivated, may be raised before the proper forum, which, in this case, is the trial court in South Africa," she said.

The NPA has confirmed Zuma's legal team would seek to challenge the ruling later this month.

The state's obligation

Zuma's legal team took the NPA to task for failing to invite him to make representations about the charges against him, arguing the state was legally obliged to do so and Zuma had been forced to turn to the courts to uphold his constitutional rights.

Their argument persuaded Pietermaritzburg High Court Judge Chris Nicholson to declare Zuma's prosecution invalid and effectively quash the case against him.

The Supreme Court of Appeal was unconvinced and overturned that decision. Zuma and his lawyers have indicated they will seek leave to appeal against the Appeal Court decision. They are expected to file their appeal application at the Constitutional Court today.

Jacob Zuma's fault

The battle over the warrants and Mauritian documents dispute

The State elected not to challenge Msimang's decision to strike off its case against Zuma, reasoning that to do so would serve no real purpose because the judgment did not prevent the NPA from charging Zuma again once its investigation was complete, not because the NPA agreed with Msimang's findings.

During an argument before Msimang in 2006, counsel for the State, Wim Trengove SC, stressed the State had applied for a postponement of Zuma's trial because it was locked in disputes over the Scorpions' warrants and Mauritian documents.

Trengove said this had prevented the State from being able to properly prepare its case for six months, resulting in the KPMG forensic audit into Zuma's financial affairs only being completed a year after the August 2005 raids.

Trengove further sought to persuade Msimang that the State's requested postponement would not cause an "unreasonable delay" in Zuma's trial.

While Msimang slammed the State for its lack of readiness to prosecute, sources sympathetic to the State maintain that the NPA would have been ready to put Zuma on trial, had the August 2005 raids not been challenged in court. They maintain that Zuma and Thint's opposition to the NPA's request for the Mauritian documents delayed and continues to delay the State from obtaining evidence, diverting "time and resources from completing the investigation".

Since the Constitutional Court ruled that the Scorpions' August 2005 warrants were valid - and ruled that the State was entitled to request the Mauritian documents - the NPA claims it has done everything in its power to get the Zuma case court-ready. The NPA is, however, still to obtain the Mauritian documents because of Zuma and Thint's pending legal bids to stop them from being handed over.

The State's obligation

The NPA has spent the past three years fighting accusations that the State was responsible for delaying Zuma's trial.

And, in the past six months, they have found tacit support for their claims that Zuma was the author of his own trial delays from the Constitutional Court and the Supreme Court of Appeal.

Handing down judgment in Zuma's failed warrants appeal, Constitutional Court Chief Justice Pius Langa stated in July 2008 that courts should discourage litigation before trial that seems to delay the commencement of trials.

Appeal Court Deputy Judge President Louis Harms was less diplomatic last month when he addressed Zuma's representations dispute with the NPA: "It is necessary to stress that the NDPP never refused to afford Mr Zuma a hearing. Mr Zuma knew from June 2005 that he was the subject of an investigation. He was soon thereafter served with 'interim' indictments. He had been told … that he could make representations.

"He did nothing of the sort. Instead, he resisted all attempts by the NPA to further their investigation."

Zuma's legal team has missed its January 26 deadline to hand over representations, but has told the NPA it will do so on February 9. Should their representations not persuade the NPA to drop the case, Zuma's legal team may seek to challenge that decision in court. And the State will have another legal hoop to jump through to get Zuma into the dock.