Jacob Zuma in the dock

2008-08-04 00:00

A calm and relaxed Jacob Zuma sat in the accused’s dock in the Pietermaritzburg High Court yesterday, head bowed, taking notes, while Judge Chris Nicholson and his assessors heard legal argument around the merits of his application to have his prosecution declared unconstitutional and invalid.

In between, he waved jovially and greeted his supporters in the public gallery. But he wasted no time leaving the courtroom during adjournments and largely succeeded in avoiding the horde of photographers in the foyer.

Members of the public and the numerous high-ranking politicians who attended the case intermittently listened intently to the legal argument or dozed, while others snacked surreptitiously. One man even ate a banana and slipped the peel into his jacket pocket.

Before the case started, members of the media battled to get their accreditation sorted out and some — whose names appeared the previous night on a list of 20 permitted to enter the courtroom, but who were not there to pick up their accreditation — were enraged to learn that their cards had been given away.

The rule that only 20 journalists were allowed in court was strictly applied. The other estimated 130 seats went to Zuma’s supporters and other onlookers.

Judge Nicholson’s secretary intervened on the judge’s behalf yesterday when security guards prevented photographers and cameramen from entering the foyer and courtroom, before the case, to film in accordance with an agreement.

Photographers subsequently converged on the courtroom to take their pictures, but Zuma himself only entered after they had been instructed to leave.

If Zuma wins this legal battle, it will probably put paid to the criminal charges he faces, unless the state appeals the ruling. However, if he is unsuccessful, he has already indicated that he will launch a second attack on the charges and apply for a permanent stay of prosecution, based on the unfairness he says has been created by the delay in bringing him to trial.

Questions are being raised about whether he might also appeal the point in the Constitutional Court.

In terms of an agreement reached by all the parties yesterday, Zuma’s co-accused, Pierre Moynot, representing the French arms company Thint, was excused from attendance and the criminal case against him and Thint was adjourned until December 8.

If Zuma’s present application fails, then he has been put on terms to serve on the state any applications for a permanent stay of prosecution he intends to bring by September 30. The state must reply by October 28. The stay application will then be argued on November 25 and subsequent days.

The arguments presented by Zuma’s softly-spoken advocate Kemp J. Kemp, SC, were largely lost on the crowded gallery, including members of the media who strained to hear amid the hustle and bustle in the courtroom.

The argument centred around Zuma’s right to make representations to the National Director of Public Prosecutions (NDPP) prior to the decisions taken to prosecute him.

Zuma’s case to declare his prosecution unconstitutional and invalid is based on Section 179 (5) of the Constitution (as well as Section 22 (2) of the National Prosecuting Authority Act of 1998), which, it is argued, requires an NDPP to consult and invite representations from various people, including an accused, when reviewing a decision to prosecute.

The states argument, being presented by advocate Wim Trengove, SC, is that these sections apply only when an NDPP overrules and reverses a decision to prosecute taken by a DPP, and are not applicable to the decisions by Vusi Pikoli (in 2005) and Mokotedi Mpshe in December last year.

ingrido@witness.co.za

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