Former president Jacob Zuma. Picture: REUTERS
Former president Jacob Zuma. Picture: REUTERS

The Pietermaritzburg high court will deliver judgment on former president Jacob Zuma’s appeal application next Friday.

Zuma wants the court to grant him leave to appeal the verdict delivered by judges Jerome Mnguni, Esther Steyn and Thoba Poyo-Dlwati on October 11, which dismissed his application for a permanent stay of prosecution and that of his co-accused, French arms company Thales.

They are both facing charges of fraud, racketeering, corruption and money-laundering, pertaining to the controversial multi-billion-rand arms deal. If the appeals process fails, both Zuma and Thales face the prospect of standing trial in 2020.

On Friday, advocate Muzi Sikhakhane, representing Zuma, argued that there were reasonable prospects that another court would reason differently and reach a “different conclusion” regarding his client’s application. Sikhakhane said the court was mistaken in its analysis of a concession made by Zuma that the dropping of criminal charges against him by former National Prosecuting Authority (NPA) head Mokotedi Mpshe was irrational.

The charges were withdrawn on April 7 2009, in the Durban high court, which paved the way for Zuma to become president after the national election held on April 22 2009.

Sikhakhane said Zuma’s concession was a concession of law that a wrong provision of the NPA legislation was relied on to drop the charges. There is no concession made to the effect that there had been no political interference.”

Zuma has argued that the charges against him were a ploy by the NPA to stop him from ascending to the highest office in the land.

“Why that concession was important [is that] in all administrative action, once you have discovered an error of law, [then], of course, that case is dead, because it’s irrational. Once that point was made that they relied on the wrong provision, it would have been foolhardy not to concede that point,” argued Sikhakhane.

Legal violations

Relying on the wrong provision of the law to drop charges against the former president constituted a violation of both the NPA Act and its code of conduct, and the constitution and “taints the entire process”, Sikhakhane said. He also took issue with the bench that Zuma’s concession was given “more weight than what it was conceding”. 

He told the judges that they could “in actual fact, be very wrong” in their finding against Zuma, saying, “Another court may well reason differently [because] once you violate the supreme law of the land ... as a prosecutor, your entire hands are dirty ... That process lacks integrity. I want to persuade this court that there are reasonable prospects that another court will find differently and reach a different conclusion.”

Advocate Anton Katz, representing Thales, argued that the court got it wrong in interpreting some sections of the law and said: “[This] case calls for the appellate court to consider the issues we have raised.”

However, advocate Andrew Breitenbach, representing the state, said it was inconceivable that the Supreme Court of Appeal (SCA) would come to a different conclusion. He said Zuma had not demonstrated the prospect of success should he be granted leave to appeal the verdict dismissing his application for a permanent stay of prosecution.

The importance of the case, he said, “lies in the fact that prosecution must start without delay”. He said the impression that’s been created about the court application is that it’s about delaying Zuma’s day in court, “it’s about [the] Stalingrad” strategy [strategy of wearing down the plaintiff by tenaciously fighting anything the plaintiff presents].

“This application for leave to appeal ... is, again, about time. It’s about delaying. And these complaints about constitutional violations are not genuine complaints,” said Breitenbach.

“They are like candyfloss; you grab it, there’s nothing there. Zuma’s application for leave to appeal should be dismissed.”

mkentanel@businesslive.co.za