- Former president Jacob Zuma's corruption trial has been postponed to allow the SCA, and possibly the Constitutional Court, to decide on his ongoing efforts to have prosecutor Billy Downer removed.
- On 11 April, Zuma's lawyers filed an application for appeal court president Mandisa Maya to reconsider her court's dismissal of his so-called "special plea" appeal.
- According to Downer, and for reasons that have yet to be explained, this application was yet to be placed before Maya.
It's been more than a month since former president Jacob Zuma's lawyers filed an application for appeal court president Mandisa Maya to reconsider the dismissal of his latest legal attack on prosecutor Billy Downer – but she has yet to even see it.
This emerged in the KwaZulu-Natal High Court in Pietermaritzburg on Tuesday morning, when the long-awaited corruption case of Zuma and French arms company Thales was postponed to a holding date of 1 August to await Maya's decision, as well as further legal action from Zuma's lawyers, should she rule against him.
After Downer informed Judge Piet Koen that he had twice confirmed that no decision on Zuma's reconsideration application had been made, Koen – who himself served as an Appeal Court judge – responded that he was "a bit surprised" because the application had been filed on 11 April "and normally these matters are dealt with pretty quickly".
Koen then asked Downer:
Downer answered: "The last message that I received from the registrar was that it was on its way to the president. The reason for the delay is unclear to me. It's not our mandate to interrogate that. But it has been received, the papers are ready and they are on their way to the president."
Koen asked: "And when was that Mr Downer?"
Downer responded: "That was yesterday (Monday)".
Downer subsequently confirmed that the National Prosecuting Authority (NPA) had chosen not to file a response to Zuma's multi-pronged appeal application – which primarily concerns the former president's campaign to have Downer removed as prosecutor – precisely "to speed along the process and we urged that the matter be speeded up".
As a result of the potential delays caused by the finalisation of Zuma's ongoing and possible further appeals, Koen then suggested that it was advisable for his trial to be postponed to August, rather than the June date initially agreed on by the State and defence.
Now that Zuma's reconsideration application was on Maya's desk and "without putting her on terms", Koen said he expected that a decision on it would be made "pretty shortly".
"I am in the court's hands," Downer said, before adding that "naturally, the State is dismayed…with the length of the postponements, with the effect on the administration of justice."
"I could stand here and make an argument that it's all too much," he said.
Koen answered that he was "also concerned about the delays" and their impact.
Nonetheless, he reiterated his belief that the provisions of the Superior Courts Act did not enable him to continue with the Zuma trial, while the former president was engaging in an attempted appeal process.
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This was despite the fact that he did not believe there was "any substance" to the attempted appeals, he said.
"So all we can do is sit out this process of further appeals or further applications along the path of appeals. I can't affect that in any way. Obviously, it must just be pursued in accordance with the time limits and the rules of court," Koen said.
In response, Downer stressed that the NPA did believe that Koen had a discretion to continue with its case against Zuma while he was attempting to appeal the special plea dismissal ruling given against him.
As a result of Koen rejecting that argument, he said, "we are now in precisely the sort of situation that we wanted to avoid".
Downer further stressed that it was important that, once a date for the trial to start was finally established, "it actually starts".
"We would also urge the court, even at this stage, that this can't happen every time there's some order by the court during the trial, that matters are taken up and down the superior courts to challenge those orders," he said.
Downer contends that – should the SCA and Constitutional Court dismiss Zuma's appeals – this would effectively confirm Koen's special plea ruling that "there is no scope for an appeal prior to conviction, based on s 17(1)(c) of the Superior Courts Act".
And that, the State hopes, will legally block Zuma from trying to use appeals to stall the progress of his trial.
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