By Lehlohonolo Lehana.
The Pietermaritzburg High Court has reserved judgment in former President Jacob Zuma’s application to appeal Judge Piet Koen’s dismissal of his “special plea” application.
In October 2021, the High Court ruled that Zuma had failed to prove that NPA prosecutor Billy Downer lacked the “title” to prosecute him.
Zuma had claimed Downer lacked the independence and impartiality to conduct the case lawfully. Judge Koen dismissed the matter and said Zuma’s corruption trial should proceed in April this year.
Following arguments from both legal teams, Judge Koen said judgment would be handed down on 16 February 2022.
Advocate Andrew Breitenbach, acting on behalf of the NPA, argued before the Pietermaritzburg High Court that the state believed that Zuma could only seek to appeal the dismissal of his “special plea” if and when he is convicted in the protracted arms deal corruption trial.
“The proof of the pudding will be in the trial itself. Evidence will be led and once that is done, this court will be in a position to assess the merit of that contention,” Breitenbach said.
Zuma and his legal team, led by Advocate Dali Mpofu, were back in the high court to challenge Judge Piet Koen’s ruling last year that dismissed Zuma’s bid to have Downer recused from prosecuting the arms deal corruption trial.
Breitenbach argued the questions around Downer’s impartiality, or lack thereof, would be best tested at the end of the arms deal trial, or during the trial.
“We respectfully agree that it’s in the interests of justice that any question about whether Zuma has received a fair trial is best determined by this court at the end of the trial or in its discretion should something happen in the course of the trial,” he contended.
The question of whether there would be an adverse impact on the fairness of Zuma’s trial would become apparent during the course of the trial, Breitenbach added.
So the interests of justice point to that question being determined not hypothetically or in the abstract, but with reference with what actually happens in the case,” he said.
Breitenbach said it was not in the interests of justice to allow Zuma to appeal his dismissed “special plea”, as his case had poor prospects of success before the Supreme Court of Appeal (SCA) in Bloemfontein.
“The appeal would be a waste of time [and] It will cause further delays,” he said.
Earlier, Zuma’s legal team argued that the procedure adopted by the Pietermaritzburg High Court in the leave to appeal application was irregular.
Mpofu contended that the high court committed an irregularity when it directed the state to submit an answering affidavit.
He said that no statute or rule of court made provision for such an affidavit, including the directive that Zuma’s legal team should submit a replying affidavit.
Zuma faces 16 charges relating to 783 payments he allegedly received from his former financial advisor Schabir Shaik, as well as a R500 000-a-year bribe that the State alleges Shaik facilitated for him from French arms company Thales.