Former president Jacob Zuma says the Pietermaritzburg High Court “mis-focused” on the gist of his permanent stay of prosecution application and was biased against him when it dismissed it.

Zuma said this in his notice, dated November 1, appealing a ruling by the court which dismissed his permanent stay of prosecution application. 

On October 11, it found that he should be prosecuted for a corruption case that had been hanging over him for almost two decades.

Zuma, however, in a lengthy notice of 48 points, argued the ruling was biased and aimed at assisting the National Prosecuting Authority (NPA) in violating his constitutional rights. 

READ: AS IT HAPPENED | Jacob Zuma stay of prosecution application dismissed

He said the incontrovertible evidence of constitutional violations by the NPA, which the court failed to accord to, included the fact that its unreasonable delay in charging him was prejudicial and he could not be held jointly liable for the “unreasonable delay”. 

The notice also stated the court failed to accord appropriate weight to the NPA’s “unlawful” actions in naming Zuma as Schabir Shaik’s co-conspirator, adding the court’s choice of trial proxy against him and other due process violations constituted an abuse of process and a violation of his right to be presumed innocent.

“The court failed to have regard to the fact that the NPA was, for a period of over 15 years, always advised by its own experts of their unlawful conduct in the handling of Mr Zuma’s prosecution.”

Irrelevant factual considerations

Zuma, through his lawyers, also stated in the notice that the court had “erroneously” concerned itself with irrelevant factual considerations, ignoring those that were relevant in assessing whether the NPA’s conduct in the case justified a permanent stay of prosecution. 

“This inadequate approach of the High Court has failed to rigorously engage with the grounds raised in the application. 

“Instead, the judgment commences with a concession made in another hearing. This constitutes a misdirection by the High Court,” the papers read. 

The papers also outline that the court “erred” in finding that Zuma had a shared responsibility with the NPA on the issues of the delays in the case. 

He stated the court should have found that the NPA was the only institution with a constitutional obligation to ensure that his prosecution was brought within a reasonable time as enshrined in the country’s Constitution. 

“The fact that Mr Zuma exercised his constitutional rights to challenge the conduct of the NPA in its exercise of prosecutorial discretion does not make him liable for the unreasonable delay. In any event, the factual history clearly demonstrates that the NPA was responsible for significant delays.” 

Violated constitutional right to dignity

Zuma also turned to former NPA heads Bulelani Ngcuka and Vusi Pikoli. 

He stated Ngcuka’s July 2003 announcement that the NPA’s strong case against him was not winnable. 

Zuma said the court failed to adequately deal with whether Ngcuka’s pronouncement was prejudicial to his right to a fair trial and that he violated his constitutional right to human dignity. 

“The High Court concerned itself with whether or not Mr Ngcuka’s decision not to prosecute Mr Zuma despite publicly naming him as a suspect against whom there was a prima facie case of criminal wrongdoing, was legally defensible.” 

“The High Court failed to adequately address the prejudice caused by Mr Ngcuka’s conduct in condemning Mr Zuma as a criminal suspect against whom there is prima facie evidence of the nature that the courts would not convict.”

On Pikoli, Zuma said the High Court “erred” in finding that the conduct of the former head was lawful and permissible. 

He argued the court should have found that the Constitution, NPA and prosecutorial policies and code of conduct do not permit Pikoli to report the NPA decision to prosecute to the president or minister of justice.  

Zuma said there were more than reasonable prospects for his appeal to be successful and for another court to reach a different conclusion in his favour, granting him the permanent stay.