Another postponement gives Jacob Zuma a birthday away from court and his corruption trial

It was not intentional, but Pietermaritzburg high court judge Piet Koen gave Jacob Zuma an early birthday present by agreeing to postpone the former president’s arms deal corruption trial.

Koen said he had little or no discretion in announcing the postponement to May. SA law dictates that if an appeal has been lodged against a ruling, that ruling is automatically suspended unless it can be shown, in exceptional circumstances, that the appeal is an abuse of court processes.

In this matter, the state had not done enough to prove this.

"Zuma has challenged many decisions, invoking the appeal process to the highest courts, many of them unsuccessful, which have resulted in unfortunate delays," Koen said. "As much as they may be viewed with suspicion and result in delays which favour him, they do not amount to an abuse. The finding of mala fides would require more proof by the state."

Somewhat prophetically, in a 2017 ruling involving the prosecution of Zuma, Supreme Court of Appeal (SCA) judges quoted TS Eliot, who spoke of "the recurrent end of the unending".

It was this that lead prosecutor Billy Downer repeated in his argument against the postponement on Monday, submitting that "there was more to come". He said Koen surely had discretion because Zuma was abusing the system through his "Stalingrad defence", which has gone on for two decades.

Zuma’s advocate, Dali Mpofu, labelled this "a gratuitous insult not borne out by the facts".

Downer, the subject of Zuma’s present complaints, said that Koen correctly rejected the former president’s bid to oust him as lead prosecutor on the grounds that he had no title to prosecute. While Zuma complains that Downer is biased and has accused him of misconduct, Koen said that he was not entitled to raise these issues during his trial.

He ruled that "title to prosecute", in decided law, had nothing to do with bias or misconduct, but was about legal standing — the authority to prosecute — which Downer has.

Two SCA judges, in considering Zuma’s application for leave to appeal against this ruling, found in March there were no prospects of success.

Zuma’s legal team has now asked SCA president Mandisa Maya to reconsider this decision. Koen said the SCA’s final decision is outstanding. "Regrettably it will result in a further delay, but it is ordained by statute. It is unavoidable," Koen said.

While all eyes are now on Maya, Zuma, who turns 80 on Tuesday and was not present in court on Monday because of a medical emergency, still has a few more legal rabbits to pull out of his hat. Depending on the outcome of the reconsideration application, he can approach the Constitutional Court.

Koen set a holding date of May 17, pending the decision of the SCA, and said if the matter is disposed of by then, the trial will resume on May 31.

The day included some drama when Zuma supporter and former SAA chair Dudu Myeni allegedly tried to assault photographer Sandile Ndlovu when he took pictures of her, Carl Niehaus and Zuma’s daughter Duduzile Zuma-Sambudla.

Zuma and his co-accused, French arms company Thales, face charges of racketeering, corruption, money laundering and fraud relating to the arms deal. The former president is accused of receiving about R4m via his former financial adviser, Schabir Shaik, to assist Thales to secure defence contracts.

Shaik was convicted in 2005, but released on medical parole in 2009.

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