S v Zuma and Another

• Jurisdiction: South Africa
• Judge: Koen J
• Judgment Date: 16 February 2022
• Docket Number: CCD30/2018P
• Hearing Date: 31 January 2022
• Court: KwaZulu-Natal Division, Pietermaritzburg
• Citation: 2022 JDR 0493 (KZP)

Koen J:

Introduction:

[1]

The proceedings giving rise to this judgment commenced with an application for leave to appeal against my judgment of 26 October 2021 (the main judgment), [1] dismissing the plea in terms of section 106(1)(h) (the special plea), read with section 106(4) of the Criminal Procedure Act 51 of 1977 (the CPA), which had been entered by the first accused, Mr Zuma.

[2]

Sub-joined to the end of the written application for leave to appeal, and incorporated therein, was also an application 'for further evidence in terms of section 316(5)' of the CPA (the application for further evidence). Annexed to this composite document was an affidavit, termed 'Founding affidavit' deposed to by Mr Zuma's attorney, Mr Thusini, 'in support as per Section 316(5)(b).'

[3]

The State filed an answering affidavit by Mr Downer, titled 'The State's Answering affidavit: The First Accused's application for leave to appeal & Application to adduce further evidence on appeal', on 10 December 2021. In response thereto, two replying

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affidavits, both deposed to on 12 January 2022 were filed on 13 January 2022. One is by Mr Zuma's attorney, Mr Thusini, titled 'Separate Replying affidavit in the Application to Adduce Further evidence on appeal'. The second replying affidavit is by Mr Zuma and is titled 'Mr Zuma's Replying affidavit in the application for leave to appeal (as directed by the presiding judge)'. The latter replying affidavit incorporates, from paragraphs 22 to 32, a 'Conditional Counter Application' claiming, at the end thereof, that 'in addition and/or alternatively to the section 316 grounds, leave to appeal to the Supreme Court of Appeal ought to be granted on the grounds of section 319 and/or section 317 of the CPA'.

[4]

In considering the issues arising for determination in this judgment, I shall follow the categorization below as the most convenient:

(a)

The alleged irregular procedure I had adopted in fixing dates for the exchange of affidavits;

(b)

The alleged conflict of interest on the part of Mr Downer, as deponent to the answering affidavit;

(c)

The appealability of the main judgment at this stage of the proceedings;

(d)

The merits of the application for leave to appeal;

(e)

Whether the adjudication of the special plea should have taken the form of a trial;

(f)

The application in terms of s 316(5) of the CPA for further evidence to be led in the prospective appeal;

(g)

The relief sought on the grounds of s 317 of the CPA; and

(h)

The relief sought on the grounds of s 319 of the CPA.

Before dealing with the aforesaid seriatim, it is necessary, very briefly, to re-state the fundamental findings and basis of the main judgment, particularly as they are decisive of a number of the issues arising in this judgment, and set the tone for this judgment.

Fundamental findings in the main judgment:

[5]

These are recounted in the briefest terms by way of introduction. They have been explained in detail in the main judgment.

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[6]

What was before this court to decide was only the special plea raised by Mr Zuma, nothing else, and in particular, not an application to have Mr Downer removed as the prosecutor. That was unequivocally clear from the terms of the written plea, and the heading to the affidavit filed in support thereof. It was also confirmed upon specific enquiry by me with both senior counsel for Mr Zuma, that is Mr Masuku SC, initially when the matter first came before me on 17 May 2021, and by Mr Mpofu SC, when he first appeared on 26 May 2021.

[7]

The trial before this court formally commenced when the pleas by Mr Zuma and accused two, Thales South Africa (Pty) Limited (Thales), were entered on 26 May 2021. Both accused are entitled in terms of s 35(3)(d) of the Constitution to have their trial begin and conclude without unreasonable delay. The State, representing the general public, also has the right, in the greater interest of the administration of justice, that criminal trials begin and conclude without unreasonable delay.

[8]

I am enjoined, inter alia by the decision of the SCA in NDPP v Zuma (Mbeki and another intervening), [2] to which I am bound, to confine my judgment to the issues before the court, that is the special plea only, and 'no other issues or . . . matters that were not germane or relevant; by creating new factual issues; by making gratuitous findings against persons who were not called upon to defend themselves; [and] by failing to distinguish between allegation, fact and suspicion . . .', [3] regardless of how attractive it might be to Mr Zuma to want to deal with any other possible causes of action that are not before this court. The main judgment was accordingly confined to the adjudication of the special plea.

[9]

The primary issue, more specifically, was not whether Mr Zuma's complaints might possibly require or justify the removal of Mr Downer as prosecutor, but whether they,

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assuming that they were established, would result in Mr Downer lacking the 'title to prosecute' as contemplated in s 106(1)(h) of the CPA.

[10]

That enquiry depended on the meaning to be assigned to the words, 'that the prosecutor has no title to prosecute' in s 106(1)(h) of the CPA.

[11]

That 'prosecutor' refers to the person prosecuting, and not the State, has been the law binding on this court [4] since at least Ndluli v Wilken NO.[5] No doubt arises in that regard.

[12]

As to what is meant by 'title', was decided authoritatively in Porritt and another v NDPP and others. [6] The ratio decidendi in Porritt is clear. Complaints of an alleged lack of impartiality, or of bias on the part of a prosecutor, as in Porritt, might, allowing that prosecutors have to advance the State's case and can therefore never be totally impartial, might in exceptional instances possibly impair the fair trial rights of an accused. But they do not affect the prosecutor's title to prosecute. That does not mean that a prosecutor can never be removed, but such relief is to be claimed in a separate substantive application; [7] not pursuant to s 106(1)(h) of the CPA. [8] A number of alternative satisfactory remedies

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exist in our law for an accused if his fair trial rights are infringed. But they do not include success with a special plea under the rubric of s 106(1)(h) of the CPA

[13]

Both Ndluli and Porritt are decisions of the SCA and accordingly binding on this court, even if wrongly decided, which I am not persuaded they were. Accordingly, those decisions were dispositive of the special plea. They are also dispositive of the prospects of success of the application for leave to appeal, and also some of the other applications pursued in conjunction with, and some conditionally in the alternative, to Mr Zuma's application for leave to appeal.

Alleged irregular procedure in fixing dates for the exchange of affidavits:

[14]

In paragraphs 5 to 9 of his replying affidavit, Mr Zuma contends that I directed that the State was to deliver an answering affidavit, and he a replying affidavit, in the application for leave to appeal, and that by doing so, this court adopted, in his words, a 'very problematic and potentially irregular procedure', because no law or procedural rule entitles the parties to deliver such affidavits.

[15]

This allegation is factually incorrect for reasons which I shall set out below. It is also legally irrelevant, as the fixing of dates for the exchange of affidavits had no impact on whether the main judgment was correct or wrong. It only arose after the main judgment had been delivered and cannot conceivably, even if it amounted to an irregularity, taint the main judgment.

[16]

As regards the factual incorrectness of what is alleged, Mr Zuma failed to deal with the correspondence that was exchanged between myself, the state, his attorney and the attorney for Thales, to establish a date for the hearing of the application for leave to appeal and the application for further evidence, and to fix dates for the exchange of affidavits in the application for further evidence, to ensure the expeditious disposal of that application. It is unfortunate that the allegation of an irregularity is made in the replying affidavit of Mr Zuma, and not in the evenly dated replying affidavit of Mr Thusini. Mr Thusini was the recipient of all the correspondence, and my directive relating to the exchange of

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answering and replying affidavits, which Mr Zuma complains of. He would then have addressed the context, being the chronology of correspondence, in which the fixing of the dates for the filing of the affidavits occurred. That, with respect, is what is required before an allegation of an irregularity is made against a judicial officer. It would then have been apparent immediately that the accusation of an irregularity was unsustainable. Regrettably, that was not done. Accordingly, a substantial part of this judgment will have to be devoted to setting out the contents of the correspondence that was exchanged, in some detail, adding unfortunately to the length of this judgment.

[17]

The factual position is as follows. After the application for leave to appeal was filed on 10 November 2021, mindful of avoiding any unreasonable delays, I addressed a letter per email to all the parties [9] on that very same date, referring to the application for leave to appeal and stating in the second paragraph thereof:

'The parties are invited please to nominate two alternative and earliest dates (preferably not in the same calendar week) suitable to lead counsel who will appear in the application, for the determination thereof. I shall endeavour to make myself available for one of the dates.

Please could I hear from you by return.'

[18]

Mr Downer, for...