It was a Dance of Fire and Ice for most of Thursday 23 May, during the permanent stay of prosecution application hearing of former president Jacob Zuma and French company Thales at the KwaZulu-Natal High Court in Pietermaritzburg.
The National Prosecuting Authority’s (NPA) counsel, advocate Wim Trengove, was coldly clinical as he dissected Zuma’s case, critiquing the “luxurious litigation” of the former president’s Stalingrad legal tactics – which the NPA estimates has cost taxpayers between R16.7 million and R32 million – and dismissing the “conspiracy theory” of political interference that Zuma’s legal team had advanced.
Zuma’s lawyer, advocate Muzi Sikhakhane, was hot-wired for performance, as evidenced by his retorts later in the day. He accused Trengove of “giving evidence from the Bar” in defending his comments during a public lecture in which he criticised then acting NPA head Mokotedi Mpshe’s decision in 2009 to drop the charges against Zuma.
Sikhakhane accused the NPA of being “disingenuous” when accusing Zuma of wasting taxpayers’ money during his almost 14-year legal battle, saying the state itself had thrown money and resources at pursuing the man from Nkandla in what he described as a politically motivated prosecution.
“Just look at the number of people on my right,” he told Judges Jerome Mnguni, Esther Steyn and Thoba Poyo Dlwati, gesturing to the three rows of lawyers for the state. There were also three rows of lawyers for Zuma and Thales.
‘Pattern of litigation’
The application by Zuma and Thales relates to the charges of corruption, racketeering and money laundering that followed the 2005 conviction of Schabir Shaik, Zuma’s former business adviser. Shaik was found guilty of paying Zuma R1.2 million to protect and advance his business interests and of securing an annual R500 000 bribe from Thales in return for Zuma’s protection of the company from the investigation into government’s multibillion-rand arms deal in the late 1990s.
As Trengove retraced the actions of various national directors of public prosecution – from Bulelani Ngcuka through Vusi Pikoli and Mpshe to Shaun Abrahams – he quietly cut out his argument with a rapier: the delays were not of the NPA’s doing but rather a “consistent pattern of litigation designed to delay” Zuma’s day in court to face the original criminal charges. The Supreme Court of Appeal criticised this approach in two separate judgments related to the Shaik and Zuma litigation, he added.
Zuma’s legal approach involved various interlocutory applications. These included questioning the legality of the search and seizures the Scorpions, the now disbanded anti-corruption unit, carried out on his homes and the offices of his lawyers.
Trengove told the court that “the accused cannot complain about a delay in which they have been complicit” and said that a permanent stay of prosecution was “an exceptional remedy” for an unreasonable delay.
The charges against Zuma were serious and raised a “significant rule of law consideration” regarding the “fundamental principle” that “everyone is equal before the law”, said Trengove. “A powerful public individual accused of a crime must be treated like everyone else.”
He went on to characterise Ngcuka’s 2003 announcement that he was charging Shaik but not Zuma – despite saying publicly that the NPA had a prima facie case against the latter – as a “statement made in defence of the integrity of the NPA”.
Trengove said that rather than seeking to cast Zuma into the pit of public opinion, Ngcuka was aware that the allegedly corrupt relationship between Shaik and the former president would be publicly obvious once an indictment was served on Shaik.
Trengove also dismissed the Zuma legal team’s assertion that political considerations had tainted the prosecution, pointing again to the appeal court judgments which found that, in the senior counsel’s words, “an impure motive doesn’t render a prosecution unlawful”.
He added that there was no substantive proof of political interference and that the high-water mark of this assertion was the “Zuma spy tapes” recording of a conversation between Ngcuka and then Scorpions boss Leonard McCarthy. The recording suggested they had plotted the timing of indicting Zuma to undermine his campaign to be president of the ANC in 2007, but its origins have never been made clear.
Responding to Zuma’s claims that the long and winding road to a prosecution had attached the “stigma of corruption” to the former president, Trengove said that during the past 13 years, Zuma had gone on to ride a wave of popularity that saw him become president of the ANC and then the country.
The “reputational harm” Zuma suffered was because of his association with Shaik and not because of the attempts to prosecute him, which had dragged on for 13 years and eight months, he argued.
Relevance of evidence
Trengove said that once Judge Hilary Squires found Shaik guilty in 2005, it was “inevitable” that Pikoli would pursue the prosecution of Zuma. He said Judge Herbert Msimang striking the matter off the roll in 2006, when the NPA had asked for a postponement, was because the prosecuting authority was still unclear about the legality of using the evidence from the search and seizures that was being litigated at the time by Zuma and Thales.
On Mpshe’s 2009 decision to drop the charges against Zuma, Trengove said the former president “can’t wash his hands of that decision, they sought it and got it”.
“Mr Mpshe succumbed to Mr Zuma’s representations, so there is no violation of Mr Zuma’s rights. It may well have been a violation of the public’s rights and irrational,” said Trengove.
He argued that the Browse Mole report – which the Scorpions compiled, claiming that the Angolan intelligence community was working to unseat then president Thabo Mbeki – “has absolutely nothing to do with the case” because Pikoli had dismissed it for lacking credibility.
Describing most of what Trengove had said as “incorrect and insufficient”, Sikhakhane breathed fire during his rebuttal late in the afternoon.
Sikhakhane also dismissed as “speculation” the inference that “Mpshe did it because he is a ‘Zumarite’”.
He then dropped the kind of explosive plot twist that appeared blindingly dramatic and flashy, but ultimately anaemic, when compared with the day’s otherwise compelling narrative arc: a letter he wanted introduced as evidence that purportedly confirmed there had been a meeting between former justice minister Penuell Maduna, then president Mbeki and Ngcuka in 2003 to discuss the Zuma prosecution.
Mnguni stood down the matter until Friday 24 May to allow the parties to reach an agreement on the admissibility of the letter.
The matter continues with closing arguments and the criminal trial has been tentatively scheduled for October.