Two days of proceedings have come and gone, and two more will still play themselves out in former president Jacob Zuma and co-accused Thales’ application for a permanent stay of prosecution at the Pietermaritzburg division of the KwaZulu-Natal High Court.
The outcome still rests on a knife-edge.
The defence teams for both accused have been at pains professing to the full bench of judges why their clients would not be afforded a fair trial should the court not grant them a stay on prosecution.
Should the stay of prosecution fail, the criminal trial for Zuma and Thales is set down for October 15.
On Monday, Zuma’s senior counsel Muzi Sikhakhane set the tone for the past two days.
Sikhakhane boldly argued that Zuma should have been charged in 2005 along with his onetime financial adviser Schabir Shaik. The premise for his argument was that “Shaik being charged alone was a means of testing whether the charges put forward by the NPA would stick”.
“This was a test run for the NPA [in particular former NPA head Bulelani Ngcuka] to test that if at a later stage the organisation should decide to charge the big fish, Zuma, they would know whether they had a case or not,” said Sikhakhane.
He also argued that Zuma’s constitutional rights were gravely violated by a state organ whose very policy was to uphold citizens rights.
Sikhakhane submitted that, during Thabo Mbeki’s administration, the NPA was used as an instrument to mete out political retribution towards those who were deemed to be against the status quo of the time.
He made the submission before a full bench of judges made up of Bhekisisa Mnguni, Thulo Poyo-Dlwati and Esther Steyn.
Sikhakhane said that – as revealed in the Zuma spy tapes – former NPA and Scorpion heads Ngcuka and Leonard McCarthy were engaged in an “politically motivated/unconstitutional plot to prosecute” and therefore curtail Zuma’s political career.
Sikhakhane reiterated that Ngcuka’s handling of the Zuma case, particularly his decision to rather prosecute Shaik and not his client, was “clandestine and done without any legal basis”.
He argued that Shaik being on trial alone “amounted to Zuma being prosecuted in absentia and denied him the opportunity to cross-examine evidence that later prejudiced him”.
On Tuesday Advocate Anton Katz, representing the French arms company accused of keeping Zuma on a R500 000 retainer to protect its interests in South Africa, argued that there had been an unreasonable delay and the NPA’s conduct had given his clients reason to believe that they would not be afforded a fair trial.
Katz also attempted to distance Thales from Zuma. He argued that the company had been treated by the NPA as a conjoined accomplice to the former president suffering the same fate as he at any point the NPA decided to drop or reinstate charges against him.
“Thales has been treated as an add-on, like something floating around. Whatever happens to Zuma is meted out to Thales. If charges are dropped for Zuma the same happens to Thales; when they are reinstated Thales is dragged along. There are no constitutional grounds followed.”
Katz made a passionate argument to the Pietermaritzburg High Court on Wednesday:
“Thales is independent of Zuma and Zuma is independent of Thales.”
His attempt to explain why Thales and Zuma were not linked by the reinstated charges was roundly rejected, with the judges arguing that because they faced similar charges the same treatment was meted out to them.
Court was adjourned until Thursday, when the state will outline its reasons why Zuma and Thales should not be granted a permanent stay of prosecution.
On Thursday, Wim Trengrove, who is representing the state, is expected to present a voluminous amount of evidence against Zuma and his co-accused.
Trengrove and co-advocates will have two days to present their arguments before the applicants teams are afforded an opportunity to respond before the court adjourns for the next three months, before returning with a verdict.