RECENT

Former President Jacob Zuma indicated recently that his lawyers will apply for a court order permanently to stay his criminal prosecution for corruption, money laundering and racketeering. But what are the possible grounds for granting such a permanent stay of prosecution, and what are the chances that Zuma’s application will succeed? Let’s have a look.

Some South Africans – including many politicians – have a rather schizophrenic attitude towards people accused of committing serious crimes.

On the one hand, politically unconnected, or working-class, suspects of violent crime like armed robbery and murder are often demonised as “bastards” who must be shot and even killed by the police. According to this view, such suspects do not deserve a fair trial. Many cheer on the police when they shoot and even kill such suspects – especially if the police claim that they were under attack from the suspects.

On the other hand, rich, or politically connected, suspects of economic crimes like corruption and fraud, and of violent crimes like rape, sexual assault, and other forms of violence against women (including murder) are often viewed very differently. According to this view, such suspects deserve a fair trial. We are also (wrongly) told that we have no right to form an opinion about their alleged corrupt actions or violent behaviour because we have a constitutional duty to presume they are innocent until they are proven guilty before a court of law.

It is for this reason that hardly anyone blinked an eye when earlier this year the police shot and killed 7 suspects in a church compound near Ngcobo in the Eastern Cape in an alleged shoot-out with police after the police claimed that the men were involved in the murder of five police officers. The men were black, and they were not part of the rich urban elite. To make things “worse”, they were part of a small religious sect of whom many bad things were being said.

Few people argued that the men had a right to be presumed innocent, and even fewer questioned the many claims made by the police about the involvement of the men in the murder of several police officers. I can also not recall anyone questioning the authenticity of the evidence provided by the police to justify the killing of the seven men, and, as far as I know, no one advanced procedural fairness arguments (as they often do with rich, or politically connected, suspects) to question the killing of the suspects by the police.

(I express no opinion on whether the killing of the seven men was legally justified. The media uncritically published all the claims made by the police as the truth, but I have too little factual information to be able to form a proper opinion on the matter.)

Many South Africans will be a bit more upset and will ask many more questions if the police ever killed Jacob Zuma, Mduduzi Manana or Markus Jooste (or their bodyguards) and then claimed that they were just defending themselves as they were attacked by these men (or by their bodyguards) when they tried to effect an arrest.

This widely-shared double-standard about different types of criminal suspects is probably produced by a complex web of factors, including class, race and gender prejudice, and a misplaced respect for power, privilege and celebrity.

In any event, because of this widely-held double-standard, many members of the public will at least not have to be convinced that former President Jacob Zuma is entitled to have his right to a fair trial, protected by the courts. Unlike the attitude towards the seven men killed by the police near Ngcobo (who did not enjoy a fair trial before they were killed), many of us will agree that Jacob Zuma’s trial should be halted if it becomes clear that he would not be able to receive a fair trial, as guaranteed by section 35(3) of the Constitution.

But under what conditions would it become impossible for a criminal suspect like Jacob Zuma to receive a fair trial? Our law does not have a formalistic approach and does not presume a trial is unfair just because some or other procedural mistake occurred. In one of the earliest Constitutional Court judgments in S v Zuma and Others, the Court stated that:

The right to a fair trial conferred by that provision is broader than the list of specific rights set out in paragraphs (a) to (j) of the subsection [now subsection 35(3)]. It embraces a concept of substantive fairness which is not to be equated with what might have passed muster in our criminal courts before the Constitution came into force.

This approach was again confirmed in 2012 in Bogaards v S where the Constitutional Court explained that:

In our law, the understanding of what constitutes a fair trial is flexible, its constitutive components being informed by the values that underlie our Constitution. It is trite that the right to a fair trial embraces substantive fairness and one need not emphasise that trials are required to be conducted in accordance with general open-ended notions of justice. Furthermore, all courts are enjoined to ensure that an appellant’s right to a fair trial is protected.

To determine whether a suspect could receive a fair trial, a court will look at the list of factors mentioned in section 35(3) of the Bill of Rights (although the list is not exhaustive), but the mere fact that one or more of the factors have not been fully complied with, will not automatically render the trial unfair. This is because the procedural difficulties might have had no substantial effect on the fairness of the trial.

Given this general rule, what are the arguments former President Zuma’s lawyers might advance to try and convince the court to order a permanent stay of prosecution?

First, it might be argued (as former President Zuma suggested outside court after his last court appearance) that the trial has been unreasonably delayed, making it impossible for Zuma to receive a fair trial. This argument was considered by the Constitutional Court in the case of Sanderson v Attorney-General, Eastern Cape. The Court explained the right to a fair trial and the effect delays may have on the accused as follows:

In principle, the system aims to punish only those persons whose guilt has been established in a fair trial. Prior to a finding on liability, and as part of the fair procedure itself, the accused is presumed innocent. He or she is also tried publicly so that the trial can be seen to satisfy the substantive requirements of a fair trial. The profound difficulty with which we are confronted in this case is that an accused person – despite being presumptively innocent – is subject to various forms of prejudice and penalty merely by virtue of being an accused. These forms of prejudice are unavoidable and unintended by-products of the system.

Because of this, it is important for the trial to be concluded within a reasonable time to limit such prejudice. (Of course, such prejudice can never be avoided entirely.) The right to a trial within a reasonable time, said the court, seeks to render the criminal justice system more coherent and fair by mitigating the tension between the presumption of innocence and the publicity of a trial. It acknowledges that the accused, although presumed innocent, is nevertheless “punished” because of public opinion.

To decide whether it would be impossible to have a substantively fair trial because of delays the court uses a “balancing test” in which the conduct of both the prosecution and the accused are weighed and the following considerations examined: the length of the delay; the reason the government assigns to justify the delay; the accused’s assertion of his right to a speedy trial; and prejudice to the accused. President Zuma’s lawyers might have a problem in this regard as most of the delays were either caused or consented to by the accused. Moreover, the Constitutional Court has said:

Of course, an accused that has constantly consented to postponements could find it difficult to establish that he has suffered actionable social prejudice from resulting delays. But the question is not whether he wants to go to trial, but whether he has actually suffered prejudice as a result of the lapse of time…. I would suggest that if an accused has been the primary agent of delay, he should not be able to rely on it in vindicating his rights under section 25(3)(a). The accused should not be allowed to complain about periods of time for which he has sought a postponement or delayed the prosecution in ways that are less formal.

Second, Zuma’s lawyers may again try to argue that there was political meddling in his case which would make a fair trial impossible. It might not be that easy to convince the court that this is the case, and extraordinary evidence would have to be presented for this argument to be successful. This is because the Supreme Court of Appeal (SCA) already held in National Director of Public Prosecutions v Zuma that:

A prosecution is not wrongful merely because it is brought for an improper purpose. It will only be wrongful if, in addition, reasonable and probable grounds for prosecuting are absent, something not alleged by Mr Zuma and which in any event can only be determined once criminal proceedings have been concluded. The motive behind the prosecution is irrelevant because, as Schreiner JA said in connection with arrests, the best motive does not cure an otherwise illegal arrest and the worst motive does not render an otherwise legal arrest illegal. The same applies to prosecutions.

It is important to note that this dictum relates to the unlawfulness of the prosecution, and not to the question of whether the accused can receive a fair trial. Zuma’s lawyers will try to argue that there is a fundamental difference between the two and that a bad motive should influence any decision on whether the accused can receive a fair trial – even when (as in the Zuma case) the purpose of the prosecution has always been to secure a conviction and even when (as in the Zuma case) there appears to be a strong case against the accused.

But here the lawyers will run up against another aspect of the Constitutional Court judgment in Sanderson v Attorney-General, Eastern Cape. The case dealt specifically with a request to grant a permanent stay of prosecution because the accused alleged he would not be able to receive a fair trial. The Court stated:

Even if the evidence he had placed before the Court had been more damning, the relief the appellant seeks is radical, both philosophically and socio-politically. Barring the prosecution before the trial begins – and consequently without any opportunity to ascertain the real effect of the delay on the outcome of the case – is far-reaching. Indeed it prevents the prosecution from presenting society’s complaint against an alleged transgressor of society’s rules of conduct. That will seldom be warranted in the absence of significant prejudice to the accused.

This means former President Zuma’s lawyers would have to present evidence of “significant prejudice to the accused” which would make it impossible for their client to receive a fair trial before a permanent stay would be ordered. Examples of such evidence would include proof that witnesses or evidence have been tampered with, witnesses had lost their minds or had died, or that the state has attempted to bribe the judge. 

It is not clear that delays (most of them caused or approved by the accused) or circumstantial evidence about political interference in the investigation or the decision to charge the accused will suffice.

But if Zuma and his lawyers have smoking-gun evidence that proves political interference in the trial of such magnitude that it would be impossible to receive a substantially fair trial, a permanent stay of prosecution could be granted. 

If that happens, no one else would ever again be able to prosecute the former president for the same alleged criminal offences.

Pierre de Vos, is Claude Leon Foundation Chair in Constitutional Governance, University of Cape Town

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