Durban - The National Prosecuting Authority has emerged successful in its request to the Pietermaritzburg High Court to impose a fine on former president Jacob Zuma for using disrespectful language in his application for leave to appeal last month.
Zuma wanted the court to grant him permission to approach the Supreme Court of Appeal to hear his failed application for a permanent stay of prosecution which was dismissed on October 11. This related to corruption charges emanating from the arms deal.
Handing down judgment recently, the three judges led by Jerome Mnguni, underlined at least nine phrases which they said should not have been used in Zuma's court papers.
These include words such as "sanitised version of facts", "high court worked backwards" and the "high court simply parroted..."
The judges said they noted the apology for the disrespectful words by Zuma’s lawyer advocate Muzi Sikhakhane SC but pointed out that the apology only came after advocate Andrew Breitenbach SC, on behalf of the state, submitted in his heads of argument that Zuma ought to be penalised.
“As correctly pointed out by Mr Breitenbach, the language used in Mr Zuma’s application for leave to appeal… do not belong in a proper court process. Without diverting our focus from the issues in this application, we deem it necessary to voice our displeasure on the disrespectful manner in which this court was addressed in Mr Zuma’s notice of application for leave to appeal," they said.
The judges added: "This, we do, despite Mr Sikhakane’s apology as we do not deem it sufficient in the circumstances of this case. In our view, comments or allegations that are scandalous or vexatious to the court ought to be avoided at all costs, as they can bring the administration of justice into disrepute.”
The judges also emphasised that the attitudes such as those displayed by Zuma could possibly undermine the public’s confidence in the courts and disturb the moral authority of judicial processes.
“We do not suggest that the courts must not be criticised for their judgments but we are of the view that such comments must be respectful and grounded on the judgments as they can have a wider impact than merely hurting the judges’ feelings or impugn their reputation."
Their judgment further read: "All officers of the court ought to know better and we do no more than urge them to take cognisance of the Constitution and their oath of office in matters of this nature. Disturbingly, in Mr Zuma’s heads of argument dated November 20, 2019, no attempt was made to deal with this pernicious issue,”
The judges said submission by Zuma that they over-emphasised the seriousness of the crime more than his rights had no merit whatsoever and added that the seriousness of the crime was but one of the factors to be considered in an application for a permanent stay of prosecution.
They have since hit Zuma with a costs order.
“With regard to costs, we were mindful that in applications of this nature it is not usual to grant costs order against an applicant. However, in our view, Mr Zuma’s complaints were not genuine, hence a costs order. In any event, there was no compelling reason why the costs should not follow the result, the current application included. This issue was also not raised in argument before us despite the state’ (sic) argument for such an order.”
While the court did not say how much should Zuma pay, conservative estimates show that combined with his own legal fees, the fees would be as high as R400 000.
Here are some of the words the full bench took offence for. (The underlining was done by the judges in their full judgment):
- The high court sought refuge in the SCA judgment that incorrectly found that motive of a prosecutor is irrelevant.
- The court “ adopted a sanitised version of facts biased against Mr Zuma and aimed at assisting the NPA’s violations of Mr Zuma’s constitutional rights”
- It appears the high court worked backwards in determining this matter (Zuma’s application for a permanent stay of prosecution), instead of rigorously and objectively assessing the legal grounds on their merits.
- The high court simply parroted Mr Pikoli’s reasons.
- The high court simply abused the ruling of the SCA.
- To confine the conduct of Mr (Leonard) McCarthy merely to the timing of the service of the indictment is erroneous and calculated to sanitise the gravity of the prejudice against Mr Zuma.
- The high court failed to appreciate its role in this application, slavishly aligning itself to the findings of the Supreme Court of Appeal made in a different application to the one the High Court should have concerned itself with.
- The high court astonishingly found…
- It simply failed that test – rather making what appears to be gratuitous remarks about Mr Zuma’s political fortunes.
It’s not the first time Zuma is accused of using gratuitous language in court papers.
In dismissing Zuma’s application to appeal against a defamation ruling in favour of Derek Hanekom, Judge Dhaya Pillay, on November 7 this year in the same court, accused him of opting for gratuitous attacks against him former minister who successfully sued him for R500 000 for calling him “a known enemy agent.”
This is not the end of the road for Zuma as he may still directly petition the SCA in Bloemfontein and this can only happen next year as courts would go on recess mid-December and open in early January.
Political Bureau