Durban – The full judgment handed down on Friday where a permanent stay of prosecution was denied to former president Jacob Zuma and arms manufacturer Thales, detailed the “long and troubled” history of litigation between Zuma and the National Prosecuting Authority (NPA) in the so-called “arms deal” criminal case.
The 77-page judgment, unanimously agreed upon by Judges Jerome Mnguni, Esther Steyn and Thoba Poyo-Dlwati, is replete with case law and a meticulous timeline, used to detail how and why the trio came to their decision.
Mnguni read out the order at the Pietermaritzburg High Court, but not the entire judgment.
Zuma lodged his application for a permanent stay on the grounds that his rights to a speedy trial had been violated and that there had been political interference and misconduct by various officials and prosecutors in the NPA over the years, among other reasons.
The arguments for the permanent stays were heard in May by legal teams for both accused.
Zuma’s advocates argued that the alleged political interference was part of a plot designed to scupper his political climb within the African National Congress and thwart his chance of ultimately becoming state president.
The former president made the same assertions about a “conspiracy” to keep him from power when he appeared before the state capture commission in July.
But the justices said on Friday that “no case” had been made that supported the allegation of political interference.
They also found that “the seriousness of the offences that Mr Zuma is facing outweighs any prejudice, which he claims he will suffer if the trial proceeds”.
“Furthermore, the reputational harm, which he claims to have suffered, goes hand in hand with being charged. In any event, this does not seem to have prevented him from ascending to the highest office in the country, being the President of the Republic.”
In submissions for its stay of prosecution, Thales argued that Shaun Abrahams, the former National Director of Public Prosecutions (NDPP), only decided to reinstate prosecution against the company in 2018 because a decision had been taken to go ahead with the prosecution of Zuma.
The Justices explained in the judgment: “According to Thales, there has been no special reason that legitimately supports the NDPP’s decision to re-instate the prosecution. It complains that it would suffer significant trial prejudice since potential witnesses have either moved on, will not return to South Africa to testify or have become unavailable to do so due to ill health.
“In addition, it was submitted that Thales no longer has access to many documents and other records that might have assisted it in its defence.
“Thales’ application for permanent stay of the prosecution has been opposed by the State in that Thales has not established that its trial would be substantially unfair or that there is any justification that warrants such a radical remedy of a stay of the proceedings.”
The Justices said they accepted there had been a delay in the prosecution of the corporation, but were “not satisfied that the delay would result in trial prejudice”.
“As has been stated earlier in this judgment and as held in Sanderson [case law], a stay of prosecution can only be granted in the instance of trial prejudice. In the absence of any extraordinary circumstance favouring an order of a stay, which was not established in Thales’ affidavits, we are driven to conclude that Thales’ claim for a stay must fail.
“Whilst Thales claims that it will be prejudiced in its trial as a result of the non-availability of witnesses, we are not satisfied that this will be the case as Ms Guerrier for instance [who has been representing Thales in court], who has been with Thales since the inception of the investigations is still referred to as the vice president of Thales in this application. The same applies to Mr Driman, who is also still the current attorney of record.
“Furthermore, whilst a claim has been made that [implicated witness] Mr Moynot is alleged to be suffering from Alzheimer’s, there was no medical evidence to support this averment.”
Zuma is accused number one and faces one count of racketeering; two counts of corruption, one count of money laundering and 12 counts of fraud for allegedly receiving bribe money from Thales via his former financial adviser, Shabir Shaik.
Thales is accused number two and faces one count of racketeering; two counts of corruption and one count of money laundering.
It is not yet clear if the parties will apply for leave to appeal the decision, although that will likely be addressed in the same court on Tuesday when both parties are set to appear for a trial decision.