Former President Zuma savages the NPA Prosecutor over remarks on the alleged STALINGRAD litigation strategies

In a dramatic anti-climax the Presiding Judge, Koen J, concluded that Former President Zuma who savaged the NPA Prosecutor over remarks on the alleged STALINGRAD litigation strategies was entitled to use any means necessary to protect his constitutional right.

Jacob Zuma’s legal counsel, Advocate Dali Mpofu, mentioned Makume J as one of the Judges who used the term Stalingrad term in a recent judgment.

Advocate Mpofu made reference in his submissions to the Zuma dispute to paragraph 15 of the Makume judgment in the matter under Case 13276/14 which reads as follows:

“The history of this matter clearly indicates the deliberate abuse of court process by the Applicant.

He not only ignored Court orders and directives that I issued and has instead mounted a protracted “Stalingrad” type of process aimed at preventing the IDC from executing in its favour.”

The keywords used: “ABUSE OF COURT PROCESS,” featured prominently in the Zuma proceedings.

Granting an adjournment of the Jacob Zuma corruption trial to May 17, Pietermaritzburg High Court Judge, Piet Koen, said Zuma was not abusing his rights by appealing almost every adverse decision against him.

However, Makume J made a finding of abuse of court process without the dispute of abuse being determined on its own merits.

Mr. George Tshabalala remarked: “Advocate Mpofu was on point when he used Makume J’s untested conclusion that the history of the matter that he presided over clearly indicated a deliberate abuse of court process by the Applicant yet he relied on nothing in terms of evidence placed before the Court to determine whether asserting a litigant’s rights should be denigrated by a Judge who is compelled to determine disputes on the basis of facts placed before the Court.

It is significant that a Judge who took an oath to obey, respect, defend and uphold the Constitution as the supreme law of the land could determine abuse of court process without providing a factual basis for such a finding in his written judgment.

No supporting facts were provided that support the conclusion. This must-have irked Advocate Mpofu to provoke him to import this kind of judicial conduct in the defence of his client who is also accused of abusing the processes of the Court.”

Zuma’s legal team asked Koen J to postpone the case indefinitely pending the final determination of his application for the reconsideration by the President of the SCA and any other remedies available to their client in terms of reviews or appeals including the quest to remove Billy Downer as a lead prosecutor from the case.

Koen J had directed that the trial commences on Monday, 11 April 2022, at the Pietermaritzburg High Court, but Zuma’s legal team argued that the Presiding Judge lacked title to exercise any discretion to order that the trial proceeds without the application for the reconsideration of the SCA judgment being disposed of as per SCA prescripts.

The reconsideration of an SCA decision exists as a remedy but has rarely been used making the Zuma case a unique and novel pathfinder for litigations who are often victimized by judges resulting in the travesty of justice inside courtrooms.

State Prosecutor, Advocate Billy Downer, the Court was being used by Zuma when Koen J crystallized the question he had to determine like that of whether he had the discretion to determine whether Zuma was entitled to use the reconsideration remedy as a constitutionally valid weapon to enjoy the benefit from the protection of the law.

Downer asserted that Zuma’s so-called Stalingrad legal strategy is abusive of the Court process and was solely meant to delay the trial.

He asserted that: “The augment of the Superior Court Act that effectively disallowed criminal appeals to the SCA before conviction, was designed to prevent piecemeal appeals and delays in criminal matters,”

So, should the application for postponement be granted, the effect of delaying the trial will be to achieve what this court seeks to avoid. It makes this case special given its background on delays and the effects of countless applications, all of which have been refused.

If this application for postponement is granted pending further appeal procedures that mean that good order in trials would be frustrated, and that is the frustration in this case because we don’t seem to be getting anywhere.”

Notwithstanding the above, Advocate Mpofu refuted Downer’s construction by saying Zuma has done everything in his power to ensure he gets his day in court.

“This gratuitous insult of ulterior motive and Stalingrad and delays and so on, it is not born out by the evidence before your lordship. I don’t know what happened in other courts, but before this court my lord, Mr. Zuma has consistently done everything in his power for this matter to proceed. On the 22 and 23rd of September, while he was entitled to be here, he waived his rights to be in court so that the matter might proceed, today he has done the same thing,” asserted Advocate Mpofu.

The Presiding Judge, Koen J, had this to say: “Mr. Zuma has challenged many decisions adverse to him in the past, usually in invoking the entire appeal process to the highest courts in this land and, in many instances, has been unsuccessful, which resulted in inevitable and unfortunate delays.

“He is also on record through previous counsel representing him, that he will continue to exercise all rights available to him. But the exercise of those rights, as much as they may be viewed with suspicion and distrust from certain quarters as resulting in delays that only favour him, do not per se amount to an abuse of those rights. The finding of [abusing the court process] would require more and clear proof from the state, which I cannot make on the allegations in the present papers alone.”

It would not be an overstatement that the Makume J judgment has to be viewed in the context of what Koen J stated above.