JZ’S health the next combat zone
The former president’s undisclosed illness looks set to force another delay in a trial almost two decades in the making
In a case marked by delay upon delay and one trial within a trial after another for more than a decade, Jacob Zuma’s arms deal case is likely to hit another wall next week — his health. The National Prosecuting Authority (NPA) is expected to demand a second opinion from a doctor of its own nomination after mulling a report from military doctors submitted by Zuma’s legal team last week.
This would be in line with an order granted by Judge Piet Koen when he postponed the case until 9 and 10 September.
And it was clear this would probably follow when Wim Trengove SC, who is representing the NPA on Zuma’s bid to have Billy Downer removed as the prosecutor in the matter, demanded the report be filed by 20 August to give the state sufficient time to interrogate it before the hearing date.
The report is meant to elaborate on a medical certificate from the military filed to court last month, which mentioned an undisclosed injury incurred last year, and to indicate when — or whether — Zuma can stand trial. It could inform the case for an application for a considerably longer delay in the trial.
According to the certificate, the former president requires extensive treatment that has been delayed repeatedly by the corruption case and his imprisonment in July at the Estcourt Correctional Centre to serve 15 months for contempt for defying a Constitutional Court order to testify before the Zondo commission investigating state capture. Further delay would be life-threatening, it says.
Brigadier General Mcebisi Mdutywa stated that Zuma was undergoing “extensive medical evaluation and care as a result of his condition that needed an extensive emergency procedure that has been delayed for 18 months due to compounding legal matters and recent incarceration”.
On his estimation, it would take six months for Zuma to recover.
Zuma’s former legal team mentioned health concerns to the court in their motivation for withdrawing, but these were vaguely voiced and at the last court date his new counsel claimed they did not yet know the precise nature of the condition Mdutywa raised.
The NPA and its legal team will only state their position on the legitimacy of the full report, finally filed a week beyond deadline, in court next week. By taking pains that no details become public, the state is ensuring it can press for full disclosure of the facts and restrict Zuma’s recourse to arguments of privacy violation.
His lead counsel, Dali Mpofu SC, raised confidentiality on August 10 when Downer described Mdutywa’s submission as perplexing, given that it did not explain the injury or why something that happened a year and a half ago had suddenly rendered him unfit for trial.
The Criminal Procedure Act makes provision for further assessment.
Zuma’s eponymous foundation fired a pre-emptive strike late on Tuesday, pointing to the words “if necessary” in Koen’s order allowing the state to ask for a second opinion to challenge that of the military.
“The foundation is of the view that the NPA has the burden to make the case if they don’t want to accept the medical report.”
Foundation spokesperson Mzwanele Manyi suggested a demand for a second medical assessment would offend Zuma because he felt the courts have viewed his doctor’s notes with undue scepticism. A case in point, he said, was Judge Dhaya Pillay’s issue of a warrant of arrest last year when Zuma failed to appear in the Pietermaritzburg high court for a pre-trial hearing and his counsel submitted a scanty certificate from a medical doctor.
Similarly, Zuma took umbrage when Deputy Chief Justice Raymond Zondo indicated he would speak to the former president’s doctor when he raised ill health as a reason for not testifying at the state capture inquiry.
This history of “doubt” and “distrust” meant Zuma, who accuses the courts of politically persecuting him, could refuse to consent to further examination.
“If it did happen, the refusal would have been in order,” Manyi said.
It is not that simple. Mpofu consented to the directive that a medical practitioner appointed by the state be given access to Zuma to verify his health condition and that should the state take issue with the military report, it could cross-examine the doctor who compiled it.
Next week’s hearing will be held in person, unless Koen orders otherwise in the interim.
Zuma remains in hospital for treatment by the South African Military Health Service, which is responsible for his medical care because of his status as a former head of state.
Had military doctors cleared him fit to stand trial, next week would have seen argument on his special plea entered in terms section 106(1) (h) of the Criminal Procedure Act to have Downer removed as prosecutor on the basis that he was biased and had turned the case into a crusade.
Zuma’s defence argues that should this succeed, acquittal must follow. Legal precedent is not on their side, but they contend that the NPA victimised him and violated his constitutional rights to such an extent that not only Downer but the state itself has lost legitimate standing to bring a case against him.
Downer has countered that the plea is nothing but another attempt to obtain a stay of prosecution after Zuma failed in this regard in the high court in 2019, and observers see it as part of his timeworn strategy of politicising his legal woes and delegitimising the criminal justice system.
Merit aside, the plea itself has forced a delay of three months (and counting) in the trial, where Zuma faces 16 charges of corruption, fraud, money-laundering and racketeering relating to allegedly taking a bribe from French arms-manufacturer Thales
Mpofu has raised the spectre of calling witnesses in support of his client’s claims of political meddling, aired and rejected in the Spy Tapes case but regurgitated in a 141-page affidavit filed to court in May.
This will wait while the court battle about his health plays out, not without political implications. It was part of the menace raised by those who fomented deadly unrest in response to his arrest in July, and has weighed on the Constitutional Court as it grapples with his application for rescission of sentence.
“Given my own unstable state of health, and that it is my physical life that the incarceration order threatens, I believe that I am entitled to a court that will examine — with passionate disinterest, but a keen sense of judicial duty and independence — whether this judgment represents the law on contempt of court orders in a constitutional democracy that is undergirded by the constitution whose foundational values are human dignity, equality, ubuntu and the advancement of human rights or whether, as I seek to assert, it is underlined by rescindable errors and omissions,” Zuma submitted.
This history of ‘doubt’ and ‘distrust’ meant Zuma ... could refuse to consent to further examination