Publication: Sunday Independent Issued: Date: 2006-07-02 Reporter: Jeremy Gordin Reporter:

Zuma and Thint will Apply to have Case Struck Off the Roll as State Dithers

 

Publication 

Sunday Independent
Date

2006-07-02

Reporter

Jeremy Gordin

Web Link

www.sundayindependent.co.za

 

ANC deputy president Jacob Zuma and Thint are going to go all out on July 31, the first day of their trial, to have the case against them struck off the roll.

This emerged in the wake of a letter, sent this week by the state, asking Zuma, South Africa's former deputy president, and Thint - the French arms company charged alongside Zuma with corruption - to agree to postpone their scheduled July 31 trial for seven months, until February next year.

In the letter, dated June 26, the state asked the parties to try to reach "agreement" on an adjournment. The letter was sent by Anton Steynberg, the deputy director of public prosecutions in KwaZulu-Natal, to Michael Hulley, Zuma's attorney; Ajay Sooklal, Thint's attorney; and Judge Vuka Tshabalala, the judge president of KwaZulu-Natal.

Neither Hulley nor Sooklal has yet had a chance to formulate a formal response to the letter with their clients or senior counsel (Kemp J Kemp for Zuma, Kessie Naidu for Thint). But Hulley said that the "general instruction" from his client [Zuma] was to oppose unequivocally any postponement of the trial.

Pierre Moynot, the managing director of Thint, said that "while I must obviously talk to my legal advisers first, I would say that a postponement is totally unacceptable. This has gone on long enough, hasn't it?

"The state is merely playing for time because they do not have a case, or do not like the case they do have."

Legal experts believe the defence will apply for a permanent stay of prosecution in terms of section 342A of the Criminal Procedure Act (the section dealing with "unreasonable delays").

The trial date, July 31 2006, was agreed upon by all parties last October.

On May 12 the legal teams of Zuma and Thint applied in the Durban high court for the state to be ordered to deliver within 10 days a complete indictment, further particulars and supporting documentation related to the trial.

Zuma and Thint argued that they were unable to prepare for the trial because they did not know what evidence would be led against them, although the Criminal Procedure Act and the constitution specify that an accused is entitled to know the charges to enable him to meet the case against him.

"The prosecution cannot have its cake and eat it," Kemp told the court then. "It cannot charge the accused after three years of investigation, take a year from there to get to a trial date which was agreed, and then claim that it still seeks more evidence before it is willing to go to trial.

"It changed Zuma's status to that of an accused - that cost him the position of deputy president of the Republic of South Africa… It must therefore proceed with the prosecution."

Judge Phillip Levinsohn, the deputy judge president of KwaZulu-Natal, dismissed this bid by Thint and Zuma, saying that the decision about the state's inability to present a full indictment would have to be the responsibility of the trial judge.

When Zuma and Thint oppose the state's request for a postponement it will be up to the trial judge - whose identity Tshabalala resolutely refuses to divulge - to decide whether to allow the state a postponement. If the judge does not allow a postponement, the state, which says in the letter that it will "[simply] not be possible to commence the prosecution in this matter" on July 31, will have to proceed.

The defence is then more than likely to apply for a permanent stay of prosecution - for the matter to be dropped completely - because it is unlikely that the state will be in a position on July 31 to provide the outstanding forensic accountant's report or the amended (finalised) indictment. With only 20 working days to go until the trial, the state has still not provided the forensic report or final indictment to the defence.

Steynberg wrote to Zuma and Thint that there existed three main reasons why February 2007 was a "more realistic commencement date" for the trial.

First, the judgment in Thint's application to have set aside the search warrants that were used in the search of its premises on August 18 will be handed down on Tuesday in the Pretoria high court. But whatever the outcome in this matter, Steynberg noted, the matter was likely to go to the supreme court of appeal (SCA), which would hinder the state's effort to produce a "final" forensic accountant's report.

Second, the state had been unable to lay its hands on certain evidence in Mauritius due to an injunction brought against the Mauritian authorities by the local Thomson/Thales [Thint] company. The state would ask the trial judge on July 31 to issue a "letter of request" to the Mauritian authorities which would entail bringing an application in Mauritius. This, too, would take time, Steynberg said.

Third, Schabir Shaik's appeal had been set down in the SCA from August 21-25. The prosecution team - Downer, Steynberg and others - would, first, be "seized" with this appeal. Second, in their view, it would be unwise to start the Zuma/Thint trial before the SCA delivered judgment, especially as the "Shaik appeal involves numerous legal issues that will undoubtedly also be the subject of dispute" in the forthcoming Zuma/Thint trial.

With acknowledgement to Jeremy Gordin and Sunday Independent.