Quote of the week

As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.

Khampepe J
Zuma v Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector Including Organs of State and Others (CCT 52/21) [2021] ZACC 28 (17 September 2021)
29 January 2007

Zuma will play for time

If Mr Jacob Zuma is recharged by the NPA later this year as is generally expected, Mr Zuma’s lawyers will most probably launch an application for a permanent stay of prosecution.

They will therefore probably be just as eager as myself to get their hands on a copy of the judgment by Acting Judge Anton Van Zyl, handed down in the Durban High Court last week in which he dismissed an application for a permanent stay of prosecution by disbarred Durban lawyer, Ian Stokes.

Stokes had made the application before the commencement of his fraud and theft trial in June last year, alleging that documentation crucial to his defence was taken from his offices by some of his accusers and that it would therefore be impossible to have a fair trial.

Unfortunately I have not read the judgment (please email if you have a copy) but in a report in The Mercury the judge is quoted as saying that such applications for permanent stay of prosecution were rarely granted because they were ‘drastic’, affected the public view of the criminal justice system and affected complainants. According to The Mercury report:

‘I am not satisfied that the applicant has demonstrated that a fair trial cannot take place,’ he [the judge] said. The judge said the right to a fair trial was a broad concept which also took into account the interest of justice, of the public and of the state. He added Stokes’ right to a fair trial did not cease because this application had been refused.

This judgment seems to confirm what I had written before, namely that it would be very difficult for Zuma’s lawyers to get a permanent stay of prosecution. Is there a judge in South Africa that would rule that it is in the interest of justice to halt a prosecution like that of Zuma?

A judge would almost certainly rule that allegations of actions affecting the fairness of a trial can and should be raised during the trial where a trial judge would properly deal with such allegations.

Mr Zuma’s lawyers may nevertheless bring such an application even knowing that it has a negligible chance of succeeding. There are at least two reasons for this.

First, such an application will play well with Mr Zuma’s supporters and will help to perpetuate the idea amongst the true believers that there is a conspiracy out to get him and that he is being treated unfairly.

Second, it will take up some valuable time which would help to push back the commencement date of the actual trial to after the December ANC conference. Mr Zuma cannot afford for the trial to start before the conference because that would bring daily news reports of the shocking evidence presented by Billy Downer and the prosecuting team.

Even ANC delegates harbouring deep suspicions about an Mbeki conspiracy, may think twice about voting for Mr Zuma as ANC President, if they are confronted every day with evidence of the tawdry relationship between Mr Zuma and Mr Shaik.

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