Publication: Cape Times
Issued:
Date: 2006-08-01
Reporter: Ingrid Oellermann
Reporter:
Reporter:
Corruption trial postponed to next month
*1
Pietermaritzburg: Former deputy president Jacob Zuma
maintains he is "effectively unemployed and quite unemployable", given the
pending corruption charges which have placed a "social pall"
over him *2.
They have resulted in him being branded a "corrupt
criminal" in the press, and have severely and negatively impacted on his future
political role and his eligibility as a candidate for the presidency.
In
a supporting affidavit filed in the Pietermaritzburg High Court yesterday, Zuma
says he has suffered irredeemable "personal, social, economic and trial
prejudice" as a result of delays in bringing him to trial and the "manner in
which the prosecution has been conducted".
If the corruption case is
adjourned until next year - as the State wants - it would "destroy whatever fair
trial remnants I may have had", Zuma said in papers presented to the
court.
In fact, Judge Herbert Msimang ruled yesterday that advocates
prosecuting Zuma on fraud and corruption charges would have
just over a month to prepare for the trial - which could signal an early
end to the prosecution against Zuma and his co-accused, French-based arms
company Thint.
Wim Trengove SC, for the prosecution, yesterday argued
that the case should stand down until October 2 to give the State time to answer
a defence application filed yesterday for a permanent stay of prosecution,
submitting the outcome had "far reaching" and grave implications.
After
hearing from Kemp J Kemp, acting for Zuma, however, Judge Msimang, set the trial
date for September 5.
On that day the State will argue for the case to be
postponed until early next year, with the defence arguing for a permanent stay
of prosecution, alternatively for the case to be struck from the roll.
In
his affidavit Zuma said: "I was dismissed as deputy president of the Republic of
South Africa as a result of the two charges brought against me - the very
charges the prosecution now says they are not in a position to go to trial on.
It was obvious that the bringing of the charges would bring me into serious
disrepute."
Zuma reveals he was "requested by the president (Thabo
Mbeki), through others" to resign in light of the Schabir Shaik judgment on
Sunday June 6 last year.
"The request at that time
was hard to justify on any legal basis. The president then dismissed me,"
he states.
Zuma claims it is clear he had been investigated by the
national directorate of public prosecutions since 2000 and that he and his
financial affairs had come under intense scrutiny up until 2003, yet the
decision was taken only to charge Shaik, his former financial adviser. The then
national director of public prosecutions, Bulelani Ngcuka, had expressly stated
that there was insufficient evidence to prove Zuma's guilt.
Zuma added
that the earlier decision not to prosecute him had engendered a legitimate expectation *2 in him.
He complained that
search and seizure warrants issued in August 2005 for his homes and work places
were "grossly invasive and overboard" and "clearly designed to establish details
of my defence to the corruption charges". He claims the fact that the
prosecution had immediately started "scrutinising" the documents seized in the
searches had seriously violated his right to a fair trial.
Armed raids were carried out at the "crack of dawn" by about 300
people and it was obvious the state was willing to, and did, use "tens of millions of rand" and "unlimited manpower" to prosecute
him. *3
He said the investigation into tax offences and defrauding
the SA Revenue Services and others that had been raised in the application for
the search warrants served to demonstrate "the absolutely
cynical abuse" of the justice process by those intent on discrediting
him.
Zuma maintains the reason the state wants a postponement is to "take
certain steps" to possibly further its case against him, and said no-one could
predict when various pending applications and appeals would be finalised. This
would affect the date on which the trial could realistically commence, he said,
suggesting it could be two-and-a-half years before this happened.
The
defence teams presented five lever arch files opposing the state's application
for a postponement of the trial until next year, and supporting a permanent stay
of prosecution or alternatively for the case to be struck off the roll. The main
grounds are that any further delay in the commencement of the case would impact
on the accuseds' constitutional rights to a fair trial.
Trengove argued
that given that the state is also involved in preparations for Shaik's appeal
against his conviction and sentence, a longer adjournment was required by the
prosecution to prepare adequately and said it would be "unfair" to pressure the
state into doing a "rushed job".
But Judge Msimang was having none of it
and agreed with the date suggested by Kemp.
If Msimang grants a
permanent stay of prosecution, this would signal the end of the case against
Zuma and/or Thint , as the state would not be able to reinstitute charges. If,
however, the matter is struck off the roll, charges can be brought against
either accused again in the future.
In that event, the defence will urge
the court to order that the prosecution cannot reinstitute the charges without a
written certificate from the national director of public prosecutions or the
director's authorised representative.
In his
affidavit Moynot accused the prosecution of "tardiness, ineptitude and
indecisiveness".
He says the state's decision to reinstitute a
prosecution against Thint in November 2005, 20 months after Bulelani Ngcuka
withdrew the charges against the company, presents a "shocking display of blatant arbitrariness, indecisiveness and a
failure to act expeditiously, consistently and fairly".
The manner
in which the state had conducted itself from as early as 2000, when the
investigations began, drove one to the "irresistible
conclusion" that the investigation and prosecution had been conducted with
little regard for the Constitution, the National Prosecuting Authority Act,
prosecution policy and the UN' guidelines for the role of prosecutors, he
submitted.*4
With acknowledgements to Ingrid
Oellermann and Cape Times.
*1 Really, I thought that the
application to have the trial postponed to next year was postponed to next
month.
Maybe it's me that's the
turkey.
*2 Which is hardly surprising after the
Shaikh judgment.
When the NPA finally commits not to ever prosecute they
issue a nulle prosequi certificate. Where's JZ's nulle prosequi
certificate.
Indeed, the opposite logic applies in the case, after the
Shaikh judgment, verdict and sentence the NPA was obliged to prosecute
Zuma.
It could be said that all justice-seeking South Africans had a
substantive legitimate expectation that all of the briber (Thomson-CSF), bribee
(Zuma) and facilitator (Shaikh) would be charged and not only the
facilitator.
*3 The State used about R30 million
to successfully prosecute Schabir Shaikh and won about the same from him in
asset forfeiture - so it is about a break-even situation. Now the State wants to
prosecute the party who should always have been at the top of their priorities,
Thomson-CSF (also Alain Thetard and Jean-Paul Perrier in their personal
capacities).
If the State wins against Thomson-CSF, they will get the
other 60% of ADS equity making theirs 80% in all. They will then liquidate their
assets (after the Shaikh and Thint asset forfeitures are upheld in the Supreme
Court). This will bring then in about R100 million. By then the Shaikh and Thint
trials will have cost about R50 million, so they will have made a tidy profit. A
conviction against Zuma is maar net 'n bysaak. But they will get him if the get
Shaikh in the Supreme Court and Thint in Pietermaritzburg. Then they can do an
asset forfeiture application on Zuma. But what will they get, a traditional
village in rural Zululand - it seems Zuma owns little else apart from a strident
voice, shifty little dance and make-belief AK-47
*5.
*4 All the while and at the time of
Thomson-CSF's / ADS's jockeying for exclusive right to supply the corvette
combat suite, he and Thint had due regard for the Constitution, the OECD
Anti-Bribery Convention and the international norms of just plain common decency
(bribing deputy president to cover-up investigations, false server provider
agreements, money laundering through Mauritius and Nkobi Finance, secret damage
control meetings in Mauritius - these are all court proven
facts).
*5 Who said Zuma is unemployable. He
could be a self-employed entertainer and win the Over 60s Poep Idols any week of
the year. I'll even renew my subscription to MNET.