Publication: Sunday Times Issued: Date: 2006-09-10 Reporter: Paddy Harper Reporter:

The Chips are Down for The State’s Case

 

Publication 

Sunday Times

Date

2006-09-10

Reporter

 Paddy Harper

Web Link

www.sundaytimes.co.za

 

‘How can one use it [documents] in the face of a court order?’

It’s appropriate that the National Prosecuting Authority team in the Jacob Zuma trial stayed in the architectural monstrosity of the Golden Horse casino in Pietermaritzburg.

For the state’s application for an adjournment to succeed in the fraud and corruption trial, it depends on a series of “collateral” court actions outside the Pietermaritzburg High Court.

By its own admission, the state is “gambling” ­ to use Judge Qed’usizi Msimang’s term ­ on its success in a series of appeals against orders declaring last August’s raids on Zuma, his lawyers and associates illegal.

The success also depends on Schabir Shaik, Zuma’s former financial adviser, losing his appeal against fraud and corruption convictions on September 25.

By its own admission, the state has “taken a chance” in its application to adjourn the case.

Presenting the state’s argument on Tuesday, Wim Trengove SC told Judge Msimang the state had taken the “strategic decision” to proceed with a new indictment and a 500-page KPMG forensic report while awaiting the outcome of the appeals.

Despite the admission of chance-taking, the state seemed to carry the day, with Judge Msimang securing a concession from Zuma’s lead advocate, Kemp J Kemp SC, that the trial was not an “unfair” one.

Zuma’s legal team, and that of his co-accused, French arms dealer Thint’s South African subsidiaries Thint Holding (Southern Africa) (Pty) Ltd and Thint (Pty) Ltd, had in earlier papers argued that the basis of the trial was conspiratorial and unjustified.

Wednesday belonged to the defence when the judge gutted the prosecution over the state’s use of seized documents subject to an operative court order in the KPMG report.

A clearly outraged Judge Msimang echoed the sentiments of Thint counsel Nirmal Singh that the state was in contempt of these orders by using the seized documents.

Judge Msimang: “How can one in the first place use it [seized documents] in the face of a court order?”

Singh: “It is in fact contempt to use the documents when a court ordered you to return them.”

Judge Msimang: “It must not be used.”

Singh: “You must give the documents back. It is in fact contempt of a court order. To go and give it to a third party, KPMG, which as we know is an independent institution, separate from the state, to look at, examine, consider, peruse, prepare a report on ...”

Judge Msimang: “Is double contempt.”

When prosecutor Billy Downer SC addressed Judge Msimang on parts of Singh’s submission, he was hammered over the state’s “defiance” of the court order in using the seized material for the KPMG report and the amended indictment, which has to be given to the defence by October 15.

But the next day, Thursday, was the prosecution’s, with Judge Msimang ­ who is diabetic ­ giving Downer an unexpected, and seemingly unsolicited, apology over the events of the previous afternoon. *1

Judge Msimang also made it clear that should the October 15 deadline be met by the state, the defence would contest the amendment.

Judge Msimang adjourned the application until September 20, when he will decide whether to grant the adjournment or strike the case from the roll.

Should he grant it, a hearing will be held around October 15 to argue the amendments. Should he strike the case from the roll, the defence will move an application for a permanent stay of execution.

The contrast between the legal teams is almost as great as that of their arguments.

Trengove is all hands-behind-the-back, old school, straight-up delivery. No flamboyance.

Kemp sniggers at his own one-liners, flaps his hands and flicks his unruly hair.

Thint counsel Kessie Naidu SC is all coiffed silver locks, plummy tones and emphatic hand gestures. His partner, Singh, makes the most scathing points in a deadpan monotone.

Judge Msimang is not your sit-back-and-watch judge. He interrogates, draws counsel out on their points, stops them short when he’s trying to take notes and is quick with one-liners.

A former schoolmate described Judge Msimang as “the kid who was the class clown but who killed us all when it came to academic results”.

With acknowledgements to Paddy Harper and Sunday Times.


*1       To anyone who knows anything about judges: their conduct, their rulings and their judgments, it's invariably a case of who laughs last laughs loudest.

This week the defence were laughing a little on Tuesday afternoon and Wednesday, but by the time they'd perused the Bloodhound's report and some of it's annexures, were performing double flick flacks.