Jacob Zuma and the fair-trial conundrum

At about 4pm on May 8 2006, while Judge Willem van der Merwe was handing down a verdict of not guilty in the Jacob Zuma rape trial, I was waiting for a client outside the Carlton Centre in the Johannesburg city centre. The atmosphere in town was electric and even though I obviously knew who our former deputy president was, it was the first time I had any inkling of just how numerous and fanatical his supporters were.

The talk on that day was of serious reprisals if the current ANC president was convicted — I have to admit though that at the time I did not take any of it seriously. I am a criminal attorney, the bulk of my work is violent crime ranging from murder to armed robbery and for me this was just another outraged accused and his supporters; like many South Africans I had no idea how widespread the JZ support was — until Polokwane.

Of course, the fact that Jacob Zuma was now considered politically impotent was becoming widely accepted, not only here, but overseas as well. If you read this article from the BBC, done just after the verdict was in, for example, their take was that even though Zuma was acquitted, his evidence on, inter alia, Aids and women, would have put paid to any major political ambitions. The results of the poll they took showed that roughly two-thirds were of the view that JZ was a spent force.

This was only half the story — in May 2005 Judge Hilary Squires had convicted Schabir Shaik, Zuma’s financial adviser, on two counts of corruption and one of fraud. In a lengthy judgement, Squires also appeared to cast a shadow over JZ’s involvement with Shaik. The conviction led to Zuma being charged and dismissed as the deputy president. The case was later struck off after the state was refused a further postponement.

Which brings us to the charges being brought in December 2007, just after Jacob Zuma was elected as ANC president.

In context we now have an ANC president who is far more popular than anyone believed (I include even his own supporters here), facing what many perceive to be an attack by his political opponents using mechanisms of state which are, by present definition, meant to be independent of government.

Significantly, for all South Africans, this matter is going to occupy the better part of two years if it is to run its course — it’s going to be like having a braai:

First you put in your charcoal and your wood — Preparation for trial; significant unrest and baiting between groups.
Then you add your firelighters — Media hype and faction-sniping just days before the trial.
Allow coals and wood to become hot — State presents the charges in court (and on television)
Now start to cook the meat — Each witness equals a piece of boerewors.

Result? Like any braai, some boerewors will get burned (ask me, I am to braaiing what Michael Moore is to ballet), some will cook beautifully and some will be left raw. Depending upon how much of the meat is burned may depend the overall result.

Of course, like anything in life, if you have a “good time” at someone else’s party you may want to go and have your own braai and cook more meat and see how much of yours get burned.

Braai the beloved country?

Two vital years in our development, which includes preparing for the World Cup 2010 and an election in 2009. Eskom apart, we may well know what it’s like to live in the deepest, darkest part of Africa.

Can this case be stopped?

The issue which seems to be at the forefront right now is whether Jacob Zuma can be given a fair trial and, if not, whether the court can order a permanent stay of prosecution.

In this regard I read with some interest an article on IOL

DA spokesperson Eddie Trent is quoted in part of the article (best read in it’s entirety)

“South Africa is heading towards anarchy if the fairness of the looming corruption trial against African National Congress president Jacob Zuma is disputed, said the Democratic Alliance on Friday.

“‘Zuma’s trial will be held under the spotlight of the international community and media in an open court, presided over by a constitutionally entrenched independent judiciary.

“‘If South Africans do not believe this to be true, then we are on the slippery slope to anarchy,’ said DA spokesperson Eddie Trent in a statement.

“He said any suggestions that Zuma would not have a fair trial were ‘nothing short of ridiculous’.

“‘In fact, believing this to be true is like believing that taking a shower will wash away the chance of contracting Aids.’ ”

I am assuming that Mr Trent is being quoted correctly but will leave that to him to confirm or otherwise.

I would ask Mr Trent on what basis is “South Africa heading towards anarchy if the fairness of the looming corruption trial against African National Congress president Jacob Zuma is disputed”.

Disputing the fairness of a trial is the right of every citizen of the country. Why would contesting its fairness be anarchy? Anarchy may well result from the trial but to equate disputing the fairness with anarchy is unfounded.

In fact, the right to a fair trial is coming under the spotlight more and more as may be seen from this article by IOL’s Zelda Venter

The article, which is a report on a meeting of the Association of Regional Magistrates, deals with the issues of the right to a fair trial, particularly in light of the media’s involvement in the build up to the hearing.

She quotes Unisa Professor of Law Petro Swanepoel as follows: “While the right to media freedom was important, the right to a fair trial is more important”.

This obviously applies to all South Africans, but even more so in a case where the political direction of the country will be affected by the trial itself and the outcome.

What constitutes a fair trial?

A good overview may be obtained by looking at the Heads of Argument submitted by senior counsel on behalf of the second and third accused on the last occasion:

It is in the Natal Provincial Division, case number CC358/05 — I have extracted from it so it is no longer the fault of counsel if there are errors (but mine).

“The right to a fair trial:
Section 35 (3) of the Constitution (FC) provides for the trial rights that are applicable in relation to an accused person as follows:

“(3) Every accused person has a right to a fair trial, which includes the right —

(a) to be informed of the charge with sufficient detail to answer it;

(b) to have adequate time and facilities to prepare a defence;

(d) to have their trial begin and conclude without unreasonable delay;

(e) to be present when being tried;

(f) to choose, and be represented by, a legal practitioner, and to be informed of this right promptly;

(g) to have a legal practitioner assigned to the accused person by the state and at state expense, if substantial injustice would otherwise result, and to be informed of this right promptly;

(h) to be presumed innocent, to remain silent, and not to testify during the proceedings;

(i) to adduce and challenge evidence;

(j) not to be compelled to give self-incriminating evidence;

(k) to be tried in a language that the accused person understands or, if that is not practicable, to have the proceedings interpreted in that language;

(l) not to be convicted for an act or omission that was not an offence under either national or international law at the time it was committed or omitted;

(m) not to be tried for an offence in respect of an act or omission for which that person has previously been either acquitted or convicted;

(n) to the benefit of the least severe of the prescribed punishments if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing; and

(o) of appeal to, or review by, a higher court.”

The right to a fair trial was described by the Constitutional Court when dealing with the similar right in the interim constitution (“IC”), as follows:

“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. 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.”

The right to a fair trial is therefore broader and encompasses rights other than those that are specifically set out in paragraphs (a) to (j). It has been described as follows by Steytler:

“The dictum is important, first, for asserting that the articulated fair-trial rights should be seen as a set of minimum guarantees and second, for extending the concept of a fair trial to include “substantive fairness”.

The substantive fairness of a trial relates to the fairness of the prosecution itself and not the fairness of the manner in which the trial is conducted. Steytler describes this as follows:

“The concept of a fair trial within the meaning of section 35 (3) of the Constitution is broader than the conduct of the trial in terms of constitutionally mandated rules and procedures. It is submitted that it also includes a judgement whether the very institution of the prosecution is fair, regardless of how fairly the ensuing trial may be conducted. This substantive definition of fairness is inherent in the provisions of section 35 (3) itself.

“The right against double jeopardy is not concerned with the way the second trial is conducted (which may comply with all the principles of a fair trial), but prohibits the institution of a second trial. The unfairness of an attorney general’s decision to prosecute a second time is thus the proper focus of the right. Likewise, the right against retroactive offences does not prescribe how a trial should be conducted, but proscribes a prosecution altogether. The fairness of the trial is thus judged not in terms of the modalities of the trial but the fairness of the prosecution itself.”

There are a variety of ways in which the substantive fairness of a trial can be affected. These can include entrapment, abduction of the accused person to stand trial, bringing a prosecution in breach of an agreement not to prosecute, eavesdropping and interception by the state of attorney-client communications and an accused represented by someone posing as an advocate. These are all examples of misconduct that render the proceedings invalid on the grounds that such proceedings cannot pass the test for legality. It will be noted where the conduct of the state’s representatives is in question it can relate to the investigatory and/or the prosecutorial arms of the state.

Where the challenge is based on delay in the bringing of the prosecution and in the prosecution of the case, the accused would be relying upon one of the enumerated constitutional rights viz. the right in section 35 (3) (d) to “have their trial begin and conclude without unreasonable delay”. In the IC the right enjoyed by an accused person was to a public trial “within a reasonable time after having been charged”.

The right in the IC commenced once the accused was charged. The FC has a broader right and would include the right to have the trial begin without unreasonable delay, and therefore the period before the accused was charged would also be relevant in determining whether the right was infringed.

In the Sanderson case the Constitutional Court interpreted the right to a trial without unreasonable delay. In determining the prejudice suffered by an accused it referred to the approach in US and Canada, viz. to take into account non-trial related prejudice, that: “In the main, the rights primarily protected by such speedy trial provisions are perceived to be liberty, security and trial-related interests.”

After considering the impact that a prosecution can have on an accused and the various effects it can have on his integrity, liberty and self worth, the court stated that non-trial related prejudice is also relevant in determining whether infringement to an accused’s right to a trial without unreasonable delay has occurred.”

PLEASE NOTE that this was part of the argument being made by senior counsel on behalf of two accused.

AS SUCH it does not give you the state’s counter-argument and must be read and seen in the light thereof.

WHAT IT DOES DO is stress the importance that the right to a fair trial is given, not only in terms of our Constitution, but also our courts.

As Professor Swanepoel is quoted as saying, this right (in her opinion) should even supersede the right to media freedom in respect of that case.

If this be so and with the importance of this trial, not only to the parties but the country as a whole, can Jacob Zuma be given a fair trial on those charges and more importantly will the trial be perceived to be fair?

It is that perception among the majority of our citizens that is going to have a direct impact on our lives.