Zuma v President of the Republic of South Africa and others

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Ismail J, Baqwa J and Modiba J
• Judgment Date: 12 September 2023
• Citation: 2023 JDR 3449 (GJ)
• Hearing Date: 30 August 2023
• Docket Number: 0027676/2022
• Court: Gauteng Local Division, Johannesburg

Ismail J, Baqwa J and Modiba J:

THE COURT

[1]

Relying on s17(a)(i) and/ or s17(1)(a)(ii) of the Superior Court’s Act, [1] Mr. Jacob Gedleyihlekisa Zuma (“Mr. Zuma”) seeks leave to appeal this Court’s whole judgment and order handed down on 5 July 2023 and signed on 7 July 2023. The President of the Republic of South Africa (“the President”) is opposing the application. The second and third respondents abide the Court’s decision. The rest of the parties did not enter the fray.

[2]

An application of this nature is granted in terms of s17(a)(i) if there is a reasonable prospect that another court would find differently. It is granted in terms of s17(1)(a)(ii) when there are other compelling reasons why leave to appeal should be granted.

[3]

Having considered Mr. Zuma’s elaborate grounds for appeal as set out in his application for leave to appeal, heads of argument filed on behalf of the parties, as well as submissions by counsel for the parties, we are not persuaded that Mr. Zuma meets the test for leave to appeal on any of the two statutory provisions on which he relies.

[4]

We therefore stand by the reasons and orders set out in the judgment.

[5]

We, however, deem it necessary to address two issues for the benefit of the Supreme Court of Appeal if Mr. Zuma successfully petitions it. The first is the contention that this Court misdirected itself and flouted s34 of the Constitution by failing to deal with Mr. Zuma’s defense in respect of failure to pay a security deposit as required in terms of s9 of the Criminal Procedure Act (“CPA”) [2] . For convenience, we refer to this defense as the s9 exemption defense. The second is the contention

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Ismail J, Baqwa J and Modiba J

that this Court misdirected itself by failing to recognize that the Court in Part A condoned the late payment of a security deposit by Mr. Zuma.

[6]

After reserving judgment in this application, Judge Modiba presiding, issued a directive (“the directive”) calling on Mr. Zuma’s current attorney of record to place the correspondence exchanged with Sutherland DJP’s office regarding whether the Court in Part A granted Mr. Zuma security for late payment of the security deposit (“the correspondence”), file an affidavit placing the correspondence before this court; and explain amongst other issues, why there was persistence with the contention that this Court ignored the order for condonation granted by Court A notwithstanding Sutherland DJP’s response that no such order was granted. Mr. Zuma’s current attorney of record complied with this directive. The President’s attorney also wrote a letter to Judge Modiba clarifying his client’s position as set out in the papers and as argued by Mr. Manaetje.

[7]

The directive was necessitated by the fact that during oral argument in respect of Part B, this Court invited Mr. Zuma’s current attorney of record to prove that the Court in Part A granted condonation by obtaining an order to that effect. Mr. Zuma’s current attorney of record did not revert to this Court. As a result, this Court dealt with the condonation question on the basis that the Court in Part A did not grant it.

[8]

During oral argument in respect of this application, Mr. Manaetje for the President referred to the correspondence to rebuff the persistence on behalf of Mr. Zuma that the Court in Part A granted him condonation. Mr. Zuma’s current attorney of record had not disclosed the correspondence to this Court notwithstanding that he approached Sutherland DJP in response to an invitation by this Court.

[9]

This judgment considers the contents of the documents filed in response to the directive. This Court is appreciative of the assistance rendered by the parties’ attorneys in response to the directive.

S9 exemption defence

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Ismail J, Baqwa J and Modiba J

[10]

At paragraph 6.11 of Mr Zuma’s notice of application for leave...