Zuma: All eyes on PMB court

2008-08-03 00:00

Will Jacob Zuma ever really get his day in court? That is the question on everyone’s lips.

Today the ANC president will appear in the Pietermaritzburg High Court in response to a summons while the world watches and waits, and his supporters gather in numbers to show their displeasure at what they have termed his “persecution”.

But Zuma and his co-accused, Pierre Moynot, representing the French-based arms company Thint, will not be required yet to plead to any of the 18 charges of corruption, money laundering, fraud and tax evasion charges they face.

The criminal case will simply be adjourned while issues around the legality and fairness of the prosecution are debated — again.

Adding fuel to the emotional fires is an application by an organisation calling itself the Society for the Protection of Our Constitution to intervene in the case as an “amicus curiae” (friend of the court) on grounds that Zuma’s prosecution is not in the public interest.

There are also applications and counter-applications by the state and Zuma to strike out allegedly “scandalous, vexatious and irrelevant matter” relating largely to Zuma’s claims of a political conspiracy, to be debated.

Zuma has not formally pleaded to any criminal charges since the state first started its investigation into alleged corruption surrounding the arms deal eight years ago, although he has made it plain he disputes the allegations against him and views them as a “political plot” to prevent him becoming president.

In 2003, the then National Director of Public Prosecutions (NDPP), Bulelani Ngcuka, announced that Zuma would not be charged in spite of the fact that the state had a prima facie case against him.

The NPA’s 2005 bid to prosecute Zuma (at the behest of NDPP Vusi Pikoli) ended a year later when Judge Herbert Msimang refused it a postponement and struck the case off the roll, telling the NPA to “get its house in order” before coming back to court.

Last week the Constitutional Court finally settled one of the most important outstanding aspects in the case against Zuma and his co-accused, when 10 of the 11 presiding judges ruled that search-and-seizure operations to obtain documents for use as evidence by the state were legal, and gave the nod of approval to the state’s bid to get 14 original documents from Mauritius.

An appeal by Zuma is pending in Mauritius against those authorities’ refusal to allow him to intervene in those proceedings.

As far as the Pietermaritzburg case is concerned, Zuma’s legal team has, in papers, made clear Zuma’s stance that he is coming to court today only out of “respect for the legal process”, and that “in reality in law” there are no criminal proceedings against him because there was no right to prosecute him.

Zuma’s team will argue that the “prosecutor has no title to prosecute” Zuma as a result of the constitutional invalidity of the process.

His advocate, Kemp J. Kemp, SC, will urge Judge Chris Nicholson and his assessors — Durban advocate Griffiths Madonsela and Durban attorney J.P. Purshotam — to declare the latest indictment served on Zuma on December 28 last year to be unconstitutional and set it aside as invalid.

Their arguments will be based on an interpretation of Section 179 (5) of the Constitution, which they allege requires a national director of public prosecutions to consult and invite representations from various people, including an accused, if reviewing a decision to prosecute.

This requirement they say, is also contained in Section 22 (2) of the National Prosecuting Authority Act.

Zuma maintains that the latest decision to prosecute him in fact amounts to a “review and reversal” of the 2003 decision by Ngcuka not to charge him. Yet, he says, to date he has never been given an opportunity to make representations, and in fact, has been refused that right.

Alternatively he submits that the failure to invite representations prior to the current indictment, was “unreasonable or procedurally unfair” under the Constitution, or that it “offends the principle of legality”.

The NPA — whose arguments will be delivered by Johannesburg advocate Wim Trengove SC — maintains that Zuma’s accusations of political motives are “scurrilous and unfounded”.

They say his application to declare his prosecution invalid and unconstitutional is also unfounded in law, saying the sections relied on by Zuma apply only when an NDPP overrules or reverses the decision of a director of public prosecutions (as opposed to an NDPP). This is not the case here. The state also submits that any application to review the 2005 decision to prosecute taken by Pikoli has become moot because it is out of time.

The NPA also argues that the law affords the prosecuting authority a wide discretion to decide whether to prosecute or not, and that the administration of justice would be unduly delayed and frustrated if courts allow a proliferation of challenges, which go only to the decision to prosecute and not the guilt or innocence of an accused.

ingrido@witness.co.za

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