By Lehlohonolo Lehana.
Judge Nkosinathi Chili has dismissed former president Jacob Zuma’s application for leave to appeal a ruling to remove the state prosecutor, Advocate Billy Downer on his corruption trial.
The High Court in Pietermaritzburg already rejected Zuma’s request to have Downer removed from the Arms Deal corruption case.
Zuma is charged with corruption, racketeering, money laundering and fraud related to the 1999 Arms Deal.
Chili said he had to consider whether Zuma had reasonable prospects of success if his appeal was heard.
He did not believe Zuma’s fair trial rights would be compromised if Downer remained, and there were no reasonable prospects another court would come to a different conclusion.
Zuma arrived late for the hearing. His advocate Dali Mpofu apologised on his behalf, saying it was due to an overflowing river. The judge adjourned the proceedings briefly.
When they resumed, Mpofu said he had instructions to petition the SCA for leave to appeal.
Chili then began hearing submissions on an application by Zuma’s co-accused, French arms company Thales, for an acquittal based on its claims that two of its key witnesses have died.
Zuma has submitted a conditional counter-application for a similar acquittal, should Thales be successful.
Mpofu argued that the former president’s application should be summarily acquitted should Thales be successful in its application for an acquittal.
“The matter can be decided really on the very first point, which is that the state has materially misconstrued the case that has been brought by both accused (Zuma and Thales), to the extent that the real case between the parties has not been answered and remains basically unopposed.”
Mpofu also argued that the state’s Stalingrad litigation accusations against Zuma, which have been upheld by several courts, as being a “scratched record “and the same “tired old song”.
Thales was initially charged in 2004, but the charges were later withdrawn following an agreement between Thales—then represented by its sole director in South Africa, Pierre Moynot—and the prosecution.
As part of the agreement, Thétard provided an affidavit that the state intended to use in future prosecutions.
Advocate Naba Buthelezi for Zuma, argued that the state “no longer had a winnable case” against his client because so many crucial witnesses have died.
“We need to disabuse this court and the public and everybody else of this allegation that the 783 charges of corruption. There’s no such nonsense. It’s never been; we only have 18 counts.”
Buthelezi argued that the state knows that it cannot win its case against Zuma, but is pursuing it because it is trying “to save face”.
He argued that Thétard is dead, and the state won’t be able to use the so called “encrypted fax evidence” against Zuma, despite the fact that it did not require Thétard’s testimony to prove that the fax recorded a corrupt agreement in the Schabir Shaik trial.
The state alleges that Zuma received a corrupt monthly payment from his former financial adviser, Shaik, who in turn benefited through political influence to advance his business interests.
Advocate Barry Roux representing the French arms company stated that there were no witnesses who could give evidence in Thales’s defence because the officials who could have testified “are now dead”.
Downer suggested that Thales could call Shaik.
“Ja right, “responded Roux, indicating to all the adverse credibility findings made against Shaik in his corruption trial, where he was found guilty of bribing Zuma.
Downer argued that Thales could call Shaik, who is one of its former directors, to testify about the evidence that ultimately resulted in his own corruption conviction.
The legal team argues that the resulting loss of evidence constitutes an “irremediable infringement” of Thales’ constitutional right to a fair trial, as enshrined in section 35(3)(i) of the Constitution.
This section guarantees every accused the opportunity to present and challenge evidence in a court of law. The company’s application argues that the prolonged delay, coupled with the untimely deaths of its witnesses, has rendered it impossible to secure a trial that meets this constitutional benchmark.
“The importance of Thetard and Moynot in the criminal trial cannot be overstated. They are the only individuals who can testify on behalf of Thales in relation to the charges against it and to assist Thales in challenging any evidence led by the state against it, Roux said.
The charges against the company, alongside those against Zuma date back to a controversial multibillion-rand arms deal finalised in the late 1990s during Zuma’s tenure as vice-president.
Initially charged in 2005, the case was removed from the roll before being reinstated in 2007. In 2009, the NPA withdrew the charges, but the supreme court of appeal later overturned that decision, and the case was reinstated in 2018.