Former president Jacob Zuma and Thales are set to start their arms deal trial following Pietermaritzburg High Court order in favour of the NPA that they must stop delaying tactics.
Image: Timothy Bernard / Independent Newspapers
Former president Jacob Zuma and his co-accused had to immediately prepare for the start of the long-overdue arms deal trial after the Pietermaritzburg High Court ruled on Thursday in favour of the State that the two should stop deliberately delaying the matter.
Delivering a ruling on the National Prosecuting Authority (NPA) application, Judge Nkosinathi Chili concluded that Zuma and French arms company, Thales, had used Stalingrad tactics, a legal term meaning to deliberately delay court proceedings.
Chili’s order gave the court registrar the prerogative to decide on the date of the arms deal trial against Zuma and Thales, which had been delayed for 20 years.
“The trial is to proceed irrespective of any interlocutory applications either by the State or the defence. The parties are directed to the registrar for a suitable trial date,” said Chili before adjourning the court.
The elderly leader of the uMkhonto weSizwe Party (MKP) was first charged with arms deal-related corruption in 2005, but the charges were dropped and reinstated in 2018, when he was joined by Thales as the co-accused.
The State, through its lawyer, Advocate Wim Trengove SC, had applied to the court to grant an order that the trial should commence at the earliest date to be determined by the court registrar after consultation with the parties involved.
Trengove had also asked Chili to order that the order to start the trial without delay should not be suspended by any leave to appeal against it.
Detailing circumstances that prolonged the start of the trial, Chili said on November 15, 2018, the accused launched a permanent stay of prosecution application, which the court dismissed on October 11, 2019.
He said Zuma again filed an application on May 21, 2021, seeking the removal of State prosecutor Advocate Billy Downer from the matter.
“The matter sat on 22 September 2021 and on 26 October 2021, and Koen J (Judge Piet Koen) dismissed and directed the trial to proceed in April 2022.
“That order was followed by an unsuccessful application for leave to appeal, including a reconsideration application to the Supreme Court of Appeal and two applications for leave to appeal to the Constitutional Court,” said Chili.
He said on September 5, 2022, Zuma again launched private prosecution proceedings against Downer and journalist Karyn Maughan in relation to the alleged leaking of his confidential medical information.
He said on September 21 and 27, 2022, Maughan and Downer, respectively, approached the court on an urgent basis, seeking orders interdicting the private prosecution against them.
the court granted the interdict against the private prosecution on June 7, 2023, which Zuma appealed, but was dismissed by the Supreme Court of Appeal.
“The appeal against the enforcement order was subsequently dismissed by the Supreme Court of Appeal. On 9 April 2024, this court removed the private prosecution from the roll,” said Chili.
Zuma then launched another application to remove Downer as the public prosecutor, while Thales also launched a separate application to quash the charges against it, which Zuma supported.
When the court rejected Zuma and Thales’s applications, they both filed appeal applications.
“The application for leave to appeal in respect of the removal of Mr Downer has since been dismissed by the Supreme Court of Appeal.
“I am not certain as to what is the position regarding appeal against this court’s refusal to quash the charges against Thales and Mr Zuma,” he said.
He said Zuma called for the dismissal of the application for an order against the Stalingrad tactics.
In his affidavit replying to the NPA’s application, Zuma had also argued that Koen’s judgment had ruled that Zuma had not used Stalingrad as a strategy to delay the matter.
“He (Zuma) submitted that the application (by the NPA) is incomplete and therefore superfluous as much as it relates to both accused persons, and that the content makes it plain that the allegations of Stalingrad strategy are directed only at Mr Zuma,” said Chili.
He said Zuma’s point that the NPA only accused him, not Thales, of applying Stalingrad tactics lacked merit, as “the State has accused both Mr Zuma and Thales of having implemented Stalingrad tactics”.
“The contention that this court and Koen J made a factual finding that Mr Zuma has not implemented a Stalingrad litigation strategy is without merit. Neither the judgment of this court nor Koen K’s judgment contains a factual finding that Mr Zuma has not implemented a Stalingrad litigation strategy.
“All this court did in its judgment was to observe that there had been a lengthy delay in the prosecution of Mr Zuma and Thales. The mere fact that it (delay) could not be plainly attributed to anyone cannot be said to be a factual finding that Mr Zuma did not implement Stalingrad litigation strategy,” Chili said.
He quoted Koen saying: “Mr Zuma has challenged many decisions adverse to him in the past, usually invoking the entire appeal process to the highest court in the land, and in many instances has been unsuccessful, which resulted in inevitable delays.
“He (Zuma) is on record through the previous counsel representing him that he would continue finding all rights available to him.
“Koen J proceeded that those rights, as much as they may be viewed with suspicion and distrust from certain quarters as resulting only in delays, which only favour him, do not per se amount to an abuse of those rights,” he said.
Chili, therefore, said there was nothing in Koen’s judgment indicating that he found as a fact that Zuma had not implemented Stalingrad.
He said the High Court had on June 7, 2023, and August 3, 2023, and the Supreme Court of Appeal on October 13, 2023, found that Zuma had implemented the Stalingrad litigation strategy.
“This point (of Zuma’s disputing Stalingrad) must therefore fail,” said Chili.
Meanwhile, the JG Zuma Foundation expressed concern about Chili’s ruling, saying it disregarded the fundamental principles of fairness and rationality since there were pending proceedings before the Supreme Court of Appeal, which is yet to rule on Zuma's application for the permanent stay of prosecution.
“At the centre of the pending proceedings before the Supreme Court of Appeal is the incontrovertible reality that several material witnesses have since passed away, memories have faded, evidence has deteriorated, and the passage of time has irreparably prejudiced the ability of the accused to receive a fair trial as contemplated in Section 35 of the Constitution,” said the foundation’s statement.
bongani.hans@inl.co.za