Six months after it was last in court, the arms deal corruption case against former president Jacob Zuma and French arms company Thales will be back in the Pietermaritzburg high court on Thursday and Friday.
In June, judge Nkosinathi Chili ruled against Zuma and Thales’ bid to have the trial against them stopped.
Lawyers for both indicated at that time that they would consider appealing this ruling.
This has now been confirmed by the Jacob Zuma Foundation, which issued a statement late on Wednesday that they had applied for leave to appeal and oral argument would proceed on Thursday.
The state is opposing the granting of such leave and has also filed a separation application in which it seeks an order that the criminal trial proceed, in spite of any pending appeals.
The state is again expected to argue that Zuma in particular has adopted a “Stalingrad” approach and has for years delayed the trial through doomed-to-fail applications and appeals.
However Chili rules on the latest applications, they will undoubtedly also go on appeal.
Even if the judge rules in favour of the state and orders that the trial must proceed, that in itself can be appealed to higher courts, including the Constitutional Court, a process that can take more than a year.
Zuma first appeared on what was a second indictment in 2018 on charges of fraud, corruption, racketeering and money laundering.
He pleaded not guilty in May 2021. But he then initiated what was to become a series of “obstructive” applications, including a bid to remove lead prosecutor Billy Downer from the case and a private prosecution of Downer and journalist Karyn Maughan, none of which were successful.
Chili is also the second judge to preside over the matter, after judge Piet Koen recused himself, at Zuma’s instance.
Thales has largely stood by during all of this. But earlier this year, it launched its own application arguing that none of the delays were of its doing ― and that it could now not get a fair trial because key witnesses, including former company executives Pierre Moynot and Alain Thetard, had died.
Zuma piggybacked on this application, arguing that if the prosecution was halted against Thales then he should also be acquitted for similar reasons.
It’s unthinkable that a trial can continue when two applications, one about the removal of the prosecutor, have not been decided. And when there is a Thales application that has serious implications as to whether there will be a trial at all if your judgment is reversed.
— Dali Mpofu, advocate
But Chili dismissed the applications saying trial prejudice was a matter that should be dealt with and assessed during the actual trial.
He said the court could “only shut the door” on the prosecution’s legal right to prosecute if an accused could show exceptional circumstances and was satisfied that the accused would suffer irreparable and insurmountable trial prejudice.
At that time, trial dates that had been set down to begin in May 2024, had already passed.
Downer indicated the state would make a “serious” substantive application that the trial must continue, in spite of any further mid-trial applications and appeals.
“We have got to the stage, the trial dates were set in May 2024. It’s more than a year later. The interests of justice require that the matter proceed to trial. We will make that argument that it has been so long but no further.”
But advocate Dali Mpofu, for Zuma, indicated there was also another, separate pending appeal against an earlier refusal by Chili to remove Downer.
He said any application by the state for the trial to proceed would be opposed, saying: “It’s unthinkable that a trial can continue when two applications, one about the removal of the prosecutor, have not been decided, and when there is a Thales application that has serious implications as to whether there will be a trial at all if your judgment is reversed.”
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