Pietermaritzburg - Former President Jacob Zuma has lashed at the judiciary and the conduct of former bosses of the National Prosecution Authority (NPA) Bulelani Ngcuka and Vusi Pikoli in his notice to appeal an October 11 ruling by the Pietermaritzburg High Court which found that he must be prosecuted for corruption.
The notice was filed on Friday and it would be heard by the court on November 22, where the NPA will oppose the application after saying it was a delaying tactic because Zuma stands no chance of succeeding.
Opening his arguments which were broken down into 48 main points, Zuma starts by raising an alarm that it was wrong for the application to be heard by a full bench (three judges), instead of one.
He argued that by having the matter heard by a full bench, the matter was swiftly changed from being a criminal trial into a civil trial and by so doing, Zuma said the court violated sections of the Criminal Procedure Act.
“The full bench of the High Court has no jurisdiction to conduct a criminal trial including interlocutory application brought before a criminal court to determine whether there is a legal or factual basis on which the prosecution of the accused before that criminal court should be permanently stayed. As such the hearing of this criminal trial in the civil court constitutes an irregularity,” Zuma said in his argument.
Turning to the “improper conduct of the NPA”, Zuma says the same full bench ignored binding findings by the late Judge Herbet Msimang in 2006 that the NPA admitted that its conduct had prejudiced him. In that ruling, Msimang struck Zuma’s case off the court roll.
He also said the full bench disregarded “incontrovertible evidence of political interference” as outlined in the 2009 ruling handed down by the late Judge Chris Nicholson. However, the Nicholson ruling was later overturned by the Supreme Court of Appeal.
“The high court ought to have found that, on its own version, the NPA submitted that there was unlawful political interference in the prosecution of Mr Zuma,” he said in the court papers filed by his lawyer, Advocate Dan Mantsha.
Zuma then turned his attention to Ngcuka and his July 2003 statement that although the NPA had a case against him, it was not winnable in court.
He said the full bench of the Pietermaritzburg High Court failed to address the prejudice he suffered as a result of this and he believes that a higher court, looking closely at Ngcuka’s unethical conduct, can reach a different vedict.
“Contrary to the judicial criticism made by the Supreme Court of Appeal regarding the conduct of Mr Ngcuka, the High Court failed to adequately deal with whether the public pronouncement made by Mr Ngcuka was prejudicial to Mr Zuma’s rights to a fair trial. The High Court concerned itself with whether or not Mr Ngcuka’s decision not to prosecute Mr Zuma despite publicly naming him as a suspect against whom there was prima facie case of criminal wrongdoing… What the High Court failed to do in this regard was to determine whether or not publicly condemning Mr Zuma as a criminal suspect against whom there is prima facie evidence prejudiced him. That question is separate to the question as to whether it was correct to charge him with Mr (Schabir) Shaik, which is what was answered by the Supreme Court of Appeal.”
He then turned to Pikoli, the head of the NPA who charged him in 2005 shortly after he was fired by Thabo Mbeki who used the conviction of Shaik and the stigma that followed Zuma, to axe him as deputy president.
Zuma argues that the decision by Pikoli was informed, even after his team of prosecutors who advised him to wait until the investigation was dusted, by foreign influence and not by what is required of the NPA.
According to Zuma, the result of Pikoli’s hurried decision to charge him became evident when the case was struck off the roll in 2006 because the NPA was not ready to prosecute him.
“The conduct of Mr Pikoli gave the inescapable impression or appearance of political bias against Mr Zuma…Mr Pikoli considered his decision to prosecute Mr Zuma to be of national importance with the potential to affect foreign government’s perception of South Africa and possibly even the economy,” he argues in some parts of point dedicated to the conduct of Pikoli.