DURBAN – Former president Jacob Zuma’s defence team pulled no punches on Monday during its arguments for a permanent stay of prosecution in the graft case that the team is trying to keep from trial.
The seasoned advocates painted a picture of a politically tainted, dysfunctional and untrustworthy National Prosecuting Authority (NPA) that pursued Zuma with such reckless intent that its actions were unconstitutional.
Acting for Zuma, Advocate Thabani Masuku said that when dealing with the application for the permanent stay, the court needed to examine the constitutional standards expected of the NPA, which was endowed with a “weighty constitutional responsibility”.
Masuku said the NPA had conceded it erred in the manner in which it dealt with its protracted and “unconstitutional” attempt to prosecute Zuma.
“The NPA is given the highest protection an institution can be given because they carry out constitutional obligations that require it,” said Masuku.
“Prosecutors have to take an oath of office saying they will observe the rights of people, including the dignity of people. When the NPA appears before this court, they can’t come with dirty hands, with hands dripping with constitutional violations,” he said.
As cited by Masuku’s colleague – advocate Muzi Sikhakhane - earlier in the day, the constitutional violations included an unreasonable delay in prosecution and political interference. Zuma’s name was consequently synonymous with corruption, which retarded his right to dignity, said Sikhakhane.
Masuku described the pursuance of Zuma by the NPA as “a classical apartheid prosecution”.
He also said the application for a permanent stay was not an attack on the NPA, but was “fighting for the rights of Mr Zuma”. “It is not an attack on democracy, it is a fight for democracy,” he said.
Masuku referred the court to the 2008 judgment handed down by Judge Chris Nicholson, in which he threw the case against Zuma out of court. The judgment contained “legitimate criticism” of the NPA, said Masuku.
When reminded by the court that the Supreme Court of Appeal (SCA) overturned the Nicholson judgment, Masuku said it nevertheless should be referred to in order to gain an understanding of how the NPA violated its own Act while pursuing Zuma.
Masuku said that an affidavit deposed by senior prosecutor Willie Hofmeyr in 2015 relating to the case should also be read in order to understand the poor handling and political manipulation involved in prosecuting Zuma.
The court reminded Masuku that the SCA dismissed Hofmeyr’s affidavit and that it would have to refer to the SCA’s judgment on the dismissal.
Masuku said the SCA dismissing the affidavit was in fact an indictment on the NPA because Hofmeyr’s affidavit was not trustworthy.
“Surely that has to be taken into account as an aggravation? The [SCA was] basically saying the NPA has done a bad job, so why should the NPA be trusted?” asked Masuku.
Zuma, accused one, is facing one count of racketeering, two counts of corruption, one count of money laundering and 12 counts of fraud for allegedly receiving bribe money from arms' company Thales, via his former financial adviser Schabir Shaik, in the multi-billion rand "arms deal" of 1999.
Thales, accused two, is facing one count of racketeering, two counts of corruption and one count of money laundering.
Proceedings will continue on Tuesday morning, with Thales set to make its representation for a permanent stay of prosecution.