Riyaz Patel
Former president Jacob Zuma believes the Pietermaritzburg High Court “mis-focused” on the gist of his permanent stay of prosecution argument and claims it was biased against him when it dismissed his application.
The claims are contained in his notice, dated November 1, appealing the ruling by the court which dismissed his permanent stay of prosecution application.
The court found in October that Zuma should be prosecuted for a corruption case that had been hanging over him for almost two decades.
Zuma is facing faces racketeering, corruption, money laundering, and fraud relating to 783 payments he allegedly received in connection with the controversial multi-billion rand arms deal.
But in the latest twist to a 15-year-old judicial saga, prosecution spokesperson Natasha Kara said Friday: “I can confirm that Mr. Zuma has indeed filed the application for leave to appeal.”
Zuma, in a lengthy notice of 48 points, argues that the ruling was biased and aimed at assisting the National Prosecuting Authority (NPA) in violating his constitutional rights.
His notice speaks of the “incontrovertible evidence of constitutional violations” by the NPA, which the court failed consider, included the fact that its unreasonable delay in charging him was prejudicial and he could not be held jointly liable for the “unreasonable delay.”
Zuma’s notice further stated that the court failed to accord appropriate weight to the NPA’s “unlawful” actions in naming Zuma as Schabir Shaik’s co-conspirator, adding the court’s choice of trial proxy against him and other due process violations constituted an abuse of process and a violation of his right to be presumed innocent.
“The court failed to have regard to the fact that the NPA was, for a period of over 15 years, always advised by its own experts of their unlawful conduct in the handling of Mr Zuma’s prosecution,” the brief filed by the former president’s legal team read.
Zuma, through his lawyers, also stated in the notice that the court had “erroneously” concerned itself with irrelevant factual considerations, ignoring those that were relevant in assessing whether the NPA’s conduct in the case justified a permanent stay of prosecution.
“This inadequate approach of the High Court has failed to rigorously engage with the grounds raised in the application.
“Instead, the judgment commences with a concession made in another hearing. This constitutes a misdirection by the High Court,” the notice continued.
The papers also outline that the court “erred” in finding that Zuma had a shared responsibility with the NPA on the issues of the delays in the case.
“The fact that Mr Zuma exercised his constitutional rights to challenge the conduct of the NPA in its exercise of prosecutorial discretion does not make him liable for the unreasonable delay. In any event, the factual history clearly demonstrates that the NPA was responsible for significant delays.”
Zuma also turned to former NPA heads Bulelani Ngcuka and Vusi Pikoli.
He stated that Ngcuka’s July 2003 pronouncement that the NPA’s strong case against him was not winnable.
Zuma said the court failed to adequately deal with whether former NPA head Bulelani Ngcuka’s pronouncement – that the NPA’s case against him was not winnable – was prejudicial to his right to a fair trial and that this violated his constitutional right to human dignity.
“The High Court failed to adequately address the prejudice caused by Mr Ngcuka’s conduct in condemning Mr Zuma as a criminal suspect against whom there is prima facie evidence of the nature that the courts would not convict.”
On Vusi Pikoli, another NPA head, Zuma said the High Court also “erred” in finding that the conduct of the former prosecution chief was lawful and permissible.
He argued the court should have found that the Constitution, NPA and prosecutorial policies and code of conduct do not permit Pikoli to report the NPA decision to prosecute to the president or minister of justice.
Zuma said there were more than reasonable prospects for his appeal to be successful and for another court to reach a different conclusion in his favour, granting him the permanent stay.
