Publication: Sunday Independent Issued: Date: 2006-09-10 Reporter: Jeremy Gordin Reporter:

Days of Thunder from Court in Sleepy Hollow

 

Publication 

Sunday Independent
Date

2006-09-10

Reporter

Jeremy Gordin

Web Link

www.sundayindependent.co.za

 

Jeremy Gordin attended the Jacob Zuma-Thint hearings in Pietermaritzburg this week, where heated discussion inside court silenced the mild fanfare of the small supporting act outside

Pietermaritzburg: Tuesday, September 5

Hearings realted to the trial of Jacob Zuma and Thint, the French arms manufacturer, on charges of fraud and corruption started again this morning in the Pietermaritzburg high court after just more than four weeks.

Although, by zooming in, television and camera images show what appear to be hundreds or even thousands of excited Zuma supporters, and some newspapers write about "thousands" of people, this is misleading.

There were far fewer supporters and onlookers at last night's vigil and this morning at 9am in Freedom Square - actually the city's main taxi rank - than were at Zuma's rape trial and earlier court appearances. At most there were 300 or 400 people milling around.

But it is possible that Zuma and his advisers may have tried to keep down the number of people outside court. This time there was no convoy of buses.

Now that it has emerged - mainly, and ironically, in his affidavit for the striking off of the charges against him - that Zuma is indeed running for presidential office, Zuma's "people" want to keep Msholozi away from accusations of populism and the "excesses" that occurred at his rape trial.

They didn't entirely succeed. There was one prominent black and white banner, facing on to the court front doors, which read "Mbeki is guilty" *1. This is the kind of poster about which "ANC leaders" and newspaper editorials tut-tut. But isn't that sort of expression a (necessary) part of a constitutional democracy?

The state, led by Billy Downer, SC, assisted by Anton Steynberg and others, was back. But on July 31 the state had used the talismanic Wim Trengove, SC, to apply for a postponement of the trial to some time in 2007 - and he was back too.

Court A has a dock wide enough to hold 20 people. Zuma and Pierre Moynot, the MD of Thint, seated very close together, looked like two men huddled together on a tiny raft in the middle of a large ocean.

In contrast to the sometimes dazed demeanour he evinced at his rape trial, this morning Zuma was engaged and interested in what was happening.

I asked Zuma at midday whether he did not felt the urge to have a nap, especially because the air-conditioning was not operating properly. He said no. "In fact I find it all very interesting," he assured me.

On July 31, the defence rejected the state's application for postponement and put in a counter-application for a permanent stay of the charges or a (temporary) striking off the roll of the charges. Between then and now, as instructed by Judge Herbert Q Msimang, affidavits and heads of argument have been exchanged by the state and the defence.

This morning, Msimang - who showed himself on July 31 as a personality not to be trifled with - asked state and defence how they wanted to proceed. He told them he wanted to do things by the book.

So, somewhat to their apparent surprise, the judge said he wanted to deal first with the postponement application. They were, he said, to keep away from the issues of the defence's counter-application (why the trial should be struck off the roll), and the state was to begin.

This was in effect Msimang telling the state to argue why it should be allowed to proceed with its case against Zuma and Thint, rather than compelling Zuma and Thint to show why the state should not.

Trengove said that the main reason that the state wanted a postponement was the as yet unresolved court cases relating to search and seizure raids launched in August last year by the Scorpions against the premises of Zuma and his present and former attorneys.

Since the legality of the search warrants issued for these raids was either the subject of court cases or negotiation, Trengove said, the state was unsure which of the documents seized during the raids could be submitted in the present trial.

Trengove said that the state also wanted the appeal of Schabir Shaik, which is due to be heard from September 25-29, to be completed before embarking on the present trial.

This was not only because the prosecution team had perforce to be heavily focused on the appeal. It was also because certain important legal issues would be tested during the appeal.

Kemp J Kemp, SC, for Zuma, said that it was remarkable that Downer could list issues that would have a bearing on the Zuma/Thint trial "and yet more than a year after Zuma has been charged, we cannot defend ourselves because we still know nothing about the charges".

Kemp pointed out that there was still no final indictment and that his client still did not know the particulars of the charges against him - a contravention of his constitutional rights.

"In any case," interjected Msimang, "I do not understand the relevance of the Shaik appeal. It may be months before a verdict in the appeal is delivered. Besides, who knows whether the appeal is going to end in Bloemfontein [where the supreme court of appeal is situated] or Braamfontein [where the constitutional court is]."

"Imagine," Kemp said to Msimang, "if we [Zuma] came to court and said we were just not ready to plead [guilty or not] for 15 months. Yet the state believes it has the right to ask continually for postponements."

Wednesday, September 6

Zuma was surrounded this morning, as always, by his bodyguards and later by the "important" people who are attending his trial: Kgalema Motlanthe, the ANC secretary-general; Zwelinzima Vavi, the Cosatu secretary-general; and Blade Nzimande, the SACP general secretary.

Contrast this with Moynot whose wife, artist Bijou Moynot, has come to Pietermaritzburg with him and accompanies him every day to court, sitting at the back among the journalists.

As he went back into court after the 11.15am recess, Moynot said to his wife: "Ah well, wish me luck. I am going back to face the lions."

Bijou kissed him.

Both Zuma and Moynot left court today with a spring in their steps and smiles on their faces.

What happened was that after a long, hot day of argument, mainly from Kemp and Nirmal Singh, SC, who is also appearing in addition to Kessie Naidu, SC, for Thint, Msimang lost it with Downer. This was because Msimang learned that the much-anticipated forensic report into Zuma's financial affairs included documents seized during the August 2005 Scorpion raids.

The promised forensic auditor's report, 500 pages and 54 lever arch files of supporting documents in seven large cardboard boxes, had been ceremoniously wheeled into court by the state on Tuesday.

Msimang described the state's decision to hand the documents over to forensic auditors KPMG, in contravention of two court orders, as "double contempt of court".

"How can one make use of these documents in the face of a court order?" he asked.

He was referring to the fact that the search warrants used to seize those documents had been declared unlawful by high courts in KwaZulu-Natal and Johannesburg and that the courts had instructed the state to return everything that they had seized, as well as any copies made of documents.

Looking like a chastened schoolboy, Downer tried to make the best of things, explaining that the state had not acted improperly. Since it had proceeded with the preparation of the forensic report in May this year, it used the disputed documents only because it had seemed likely that settlement negotiations with Hulley and other affected parties would succeed.

"But notwithstanding that you didn't have any settlement agreement, you went ahead," said Msimang, "which you should not have done".

Msimang (sitting with assessors Henry Sithole and Zama Phillip Nkosi) also mentioned at least three times during the day that the National Prosecuting Authority seemed unable to demonstrate any "[legal] procedural advantage" in the decision by its chief, Vusi Pikoli, the national director of public prosecutions (NDPP), to have charged Zuma in June last year - before the investigation into Zuma was anywhere near completion.

In other words, the judge noted clearly that it seemed that there had existed reasons, other than legal ones, which had persuaded the NDPP to charge Zuma. This had to be the situation, the judge reasoned, because the state had still not provided Zuma or Thint with a complete indictment or full particulars of the charges against them.

Downer said that Pikoli's decision to charge had been "above reproach" and had not been criticised by either Zuma's legal team or Thint's.

Msimang responded: "If there wasn't any criticism of it, you and I were clearly not in the same court room."

Thursday, September 7

Being a judge probably means never having to say you're sorry. But Msimang started the day by saying to Downer that perhaps "we got too carried away by the contempt of court issue yesterday - the real issue is whether and when the documents in the forensic report will be available for a trial [since they are precluded from use by court orders]."

Msimang added that he did not believe that the state had acted maliciously. But he said he wanted to know why "you [the state] had arrogated to yourself the right to assume that you would automatically win an adjournment".

Then, in an ironic twist, Downer proceeded to argue in favour of a "fair and speedy trial" for Zuma and Thint.

Downer said it suddenly appeared the defence favoured an "indefinite delay" while the case was struck off the roll. But, Downer said, in terms of public interest in the case and in the interests of a speedy and fair trial for the accused, it would not be the right thing to do.

If on September 20 Msimang rejects the state's application for the case to be postponed until next year, it seems unlikely that the state will be able to proceed - it is simply not ready to do so *1, and this would result in the matter being struck from the roll. This would not, however, bar the prosecuting authority from re-charging Zuma.

And, if the matter is struck from the role, it could result in Zuma being re-charged not long before, or during, or after the December 2007 ANC conference at which he is hoping to be elected president of the party. While this could be perceived as a negative for Zuma, and damaging to his political progress, such harm is likely to be outweighed, at least in his view, by the court's rejection of the state's postponement application - and a vindication of Zuma's claims that he has been unfairly and shoddily treated by the state.

If Msimang grants the state's postponement application, the defence will then press on with its application to have the charges struck from the roll either temporarily or permanently. The state would also face further legal battles over the new indictment that it wants to present against Zuma and Thint on October 15.

With acknowledgements to Jeremy Gordin and Sunday Independent.


*1       The State will be able to proceed after 15 October 2006, albeit not optimally.

It is The Defence who will require a good deal of time, at least five months, to prepare for the trial - starting off with assimilating The Bloodhound's report plus its 20 000 to 30 000 pages (54 boxfiles x 500 pages) of documentary evidence annexures prima facie implicating The Accused in a range of criminal activities.