Quote of the week

Mr Zuma is no ordinary litigant. He is the former President of the Republic, who remains a public figure and continues to wield significant political influence, while acting as an example to his supporters… He has a great deal of power to incite others to similarly defy court orders because his actions and any consequences, or lack thereof, are being closely observed by the public. If his conduct is met with impunity, he will do significant damage to the rule of law. As this Court noted in Mamabolo, “[n]o one familiar with our history can be unaware of the very special need to preserve the integrity of the rule of law”. Mr Zuma is subject to the laws of the Republic. No person enjoys exclusion or exemption from the sovereignty of our laws… It would be antithetical to the value of accountability if those who once held high office are not bound by the law.

Khampepe j
Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others (CCT 52/21) [2021] ZACC 18
27 October 2021

A brief history of MR Jacob Zuma’s attempts to prevent the public from hearing the State’s evidence against him

Former president Jacob Zuma’s failure in his bid to have lead state prosecutor Billy Downer recused – and then secure wholesale acquittal on charges of corruption fraud, and racketeering – made me wonder about how many cases related to his criminal prosecution he had lost and won, and who may be paying his legal fees which must be running to several tens of millions of Rand.

Dismissing yet another application by Mr Jacob Zuma to stall or end his prosecution, the Pietermaritzburg High Court invoked the legal principle of “issue estoppel”, and suggested this could “provide a remedy to prevent the abuse resulting from the same issue being litigated in different forms before different courts”. The courts rely on issue estoppel to bring an end to litigation and to avoid the same issues being litigated with the potential of different judgments being given in respect of the same issue. The court invoked this principle in response to the 14 year history of litigation relating to Mr Zuma’s criminal prosecution.

Over the past 14 years, Mr Zuma has gone to extraordinary lengths to prevent investigators from accessing information likely to incriminate him in criminal activity. When that failed and he was charged, Mr Zuma again went to extraordinary lengths to stop the prosecution, recycling many of the same “irrelevant” or “speculative” claims “not founded on fact” or based on “hearsay”, in an attempt to stop his prosecution and to convince the public that it should ignore the evidence against him. Ultimately, Mr Zuma lost every single legal battle aimed at achieving either of the goals set out above, with his counsel on several occasions conceding that Mr Zuma’s arguments had no legal merit.

This was only possible because Mr Zuma had been able to finance the many applications (and the inevitable cost orders), something that only extremely wealthy criminal defendants would normally be able to do. While this tactic might have been successful in delaying his prosecution, a brief survey of the relevant court judgments reveals tha it has seldom led to success in court due to the lack of facts or cogent legal arguments to support his applications. Let’s have a look.

It all started well for Mr Zuma, when the High Court in Durban struck his case from the roll in 2006 after an application by the State for a postponement to complete its investigation and finalise an indictment was refused.

Despite this setback for the prosecution, investigators continued to gather evidence that might incriminate Mr Zuma by approaching the courts on several occasions to try and prevent the NPA from obtaining evidence incriminating him. This is a curious strategy to follow – especially for a politician – given the fact that Mr Zuma has consistently claimed that he had done nothing wrong, as an innocent person would have no reason to prevent the NPA from accessing evidence.

But from the perspective of a criminal suspect, the strategy made sense and at first met with success when the Durban High Court invalidated five search warrants relied on by the Scorpions to execute searches at Mr Zuma’s home and at other premises throughout the country in which approximately 93 000 documents were seized (Zuma v National Director of Public Prosecutions 2006 (1) SACR 468 (D)). The court also ordered the Scorpions to return all items seized.

However in 2008 the SCA overturned the High Court judgment and issued a cost order against Mr Zuma (NDPP v Zuma 2008 (1) SACR 298 (SCA)). The Constitutional Court confirmed the SCA judgment regarding 4 of the 5 warrants, but invalidated the warrant use to search the offices of Mr Zuma’s then lawyer, Michael Hulley and did not issue a cost order (Zuma v NDPP 2008 (2) SACR 421 (CC)). In its judgment, the Court pointed out that Mr Zuma’s had probably lied to investigators:

Early in the investigation, [Zuma] denied attending a crucial meeting during March 2000, a meeting which was evidenced by the encrypted fax and also by Mr Thétard’s 2000 diary. According to the judgment in the trial of Mr Shaik, Mr Zuma did attend that meeting. That, in my view, is sufficient to throw doubt on whether Mr Zuma would have been fully frank and honest [with investigators].

Mr Zuma also failed to stop the NPA from accessing evidence from foreign authorities. In 2007, the Gauteng High Court dismissed (with cost) Mr Zuma’s application aimed at stopping the NDPP from requesting possible incriminating evidence from UK authorities (NDPP v In Re: An Application for the Issuing of a Letter of Request in terms of Section 2(2) of the International Co-operaion in Criminal Matters Act No 75 of 1996, [2007] ZAGPHC 197).

Later that same year, Mr Zuma asked the Supreme Court of Appeal (SCA) to overturn a decision by the Deputy Judge President of the High Court at Durban to issue a letter of request to the Attorney-General of Mauritius to hand over possible incriminating documents to investigators in the Zuma matter. The SCA dismissed the application, awarding costs against Mr Zuma (Zuma  v NDPP 2008(1) SACR 298 (SCA)). The Constitutional Court dismissed a further appeal by Mr Zuma in this matter the following year, and ordered him to pay costs, including costs of the employment of two counsel (Zuma v NDPP 2008 (2) SACR 557 (CC)).

Having failed to prevent the NPA from accessing possible crucial evidence against him, and having since been charged by the NPA, Mr Zuma signalled a change of tactics with an application to the KwaZulu-Natal High Court to have his indictment by the NPA set aside. In a politically significant but legally bizarre judgment, Nicholson J declared the decision to charge Zuma invalid and set it aside (Zuma v NDPP [2008] ZAKZHC 71). But this was a pyric victory, as the SCA overturned the Nicholson judgment the next year in the most scathing terms and ordered Mr Zuma to pay costs including those consequent upon the employment of three counsel. Given the fact that the judgment was handed down eleven years ago, it is quaint to see that the SCA complained at the time that “the litigation between the NDPP and Mr Zuma has a long and troubled history and the law reports are replete with judgments dealing with the matter” (NDPP v Zuma 2009 (1) SACR 361 (SCA)).

But in April 2009 the NDPP dropped all charges against Mr Zuma shortly after he produced (probably illegally obtained) telephone recordings known as the “spy tapes”. This turned out to be a political and not a legal decision, and it was no surprise when the DA challenged the validity of this decision in 2009. This led to a protracted court battle with the (newly pliant) NPA, who refused to produce the content of the “spy tapes” and other documents needed for the review. After the High Court ordered the NPA to produce the “spy tapes”, Mr Zuma appealed the decision to the SCA. Predictably, the SCA dismissed the appeal with costs including the costs attendant upon the employment of two counsel. During oral argument Mr Zuma’s counsel had to concede that there was no factual basis for the claims made by Mr Zuma in his application and “ultimately conceded, without qualification, that this meant he had no case against the release by the NDPP” of the “spy tapes” (Zuma v DA [2014] ZASCA 101). In short, the appeal made no legal sense.

After the High Court subsequently ruled that the decision by the NDPP to drop all charges against Mr Zuma was unlawful and invalid, Mr Zuma, inevitably, appealed the matter to the SCA. Before the SCA, counsel on behalf of Mr Zuma again “summarily” conceded that the decision to discontinue his prosecution was irrational and was liable to be set aside, a concession the SCA described as “a sudden and dramatic change of stance”. The SCA also ordered the NPA and Mr Zuma jointly to pay the costs, including the costs of three counsel and the costs related to the applications for leave to appeal (Zuma v DA [2017] ZASCA). Again, given the concession made by Mr Zuma’s counsel, the appeal made no legal sense.

Fast forward to 2020, when Mr Zuma made another attempt to avoid his day in court  by launching an application for a permanent stay of prosecution. Given the long list of judgments in which almost all Mr Zuma’s arguments for a stay had previously been rejected, the High Court had no choice but to dismiss Mr Zuma’s application with costs such costs to include those consequent upon employment of two counsel.

The judgment contains many passages where the High Court pointed out that Mr Zuma’s application merely regurgitated arguments advanced and rejected in some of the judgments discussed above. For example, on the argument that the “spy tapes” justify the permanent stay of prosecution the court pointed out that the SCA had already rejected the argument and that the SCA judgment was binding on Mr Zuma (S v Zuma 2020 (2) BCLR 153 (KZD)). (11 October 2019). As earlier court judgments had made it crystal clear that the permanent stay of prosecution application had no legal merit, the application again made no legal sense.

Mr Zuma suffered a further setback when, first the High Court and then the SCA, held last year that Mr Zuma was not entitled to unlimited financial support from the state to finance his “” legal defence, and ordered Mr Zuma to repay the money he was enriched with. The court also directed the State Attorney to “take all necessary steps, including the institution of civil proceedings, to recover the amounts paid by the State for Mr Zuma’s legal costs”. The SCA further ordered Mr Zuma to pay the cost of the DA (for three counsel) and the EFF (for two counsel), taking a dim view of the abuse involved in this matter:

To have granted Mr Zuma a blank cheque to pay private lawyers is egregious. A web of maladministration appears to have made that possible. Many of the payments have no asserted legal basis whatsoever… (Zuma v DA [2021] ZASCA 39).

As the discussion above makes clear, Mr Zuma has spent many millions of Rand in legal fees to pursue legally untenable appeals in a futile attempt to stop investigators from accessing potentially incriminating evidence from investigators, and to try and stop his prosecution altogether. Not one of these court applications were based on an argument that there was no credible evidence against Mr Zuma and that his was in fact innocent. This is curious as the SCA had made clear that Mr Zuma’s best and probably only shot at ending the prosecution, was to show that it was proceeding despite the absence of credible evidence against him. While Mr Zuma has professed his innocence in court papers and at public events, it is interesting to note that this has always been in vague and general terms. He has never made any attempt to refute any of the specific incriminating evidence gathered by the NPA over the years.

Given the vast sums of money Mr Zuma (or, unlawfully, the state) had spent over the years on various court battles aimed at avoiding his day in court – often in cases where his counsel had to concede to the court that there was no factual or legal basis for some of Mr Zuma’s claims – it was perhaps not surprising when he claimed under oath in his recent rescission application that he had failed to take part in contempt of court proceedings before the Constitutional Court “because of a lack of financial resources”.

In the light of Mr Zuma’s alleged “financial difficulties”, the recent announcement that Mr Zuma intends to lodge yet another hopeless appeal against the recent High Court judgment, make no sense – unless one assumes, first, that Mr Zuma lied to the Constitutional Court when he claimed to lack financial resources to engage in court proceedings, and, second, that the aim of his legal strategy had never been to win legal victories, but rather to prevent the public from hearing the NPA’s evidence against him.

For as long as Mr Zuma manages to stall the prosecution, the public will be prevented from hearing the state’s case in all its detail, and will be unable to assess for themselves to what extent Mr Zuma had a case to answer. This is perhaps even more important for Mr Zuma than straying out of jail (the assumption being that medical parole could probably easily be arranged). This is because the public airing of all the evidence against him poses a grave political threat to him, as he runs the risk of losing the significant pockets of public support he still enjoys, if the public’s attention turns to the evidence against Mr Zuma.

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