Minor legal victory for Zuma
Request for medical records ‘premature’
FORMER president Jacob Zuma yesterday scored a minor victory when arguments about making his medical records available to the presiding judge, to determine whether he was medically unfit to come to court, were temporarily put on the back-burner.
Zuma was not in court yesterday and his advocate, Dali Mpofu SC, said that Zuma had stayed in Gauteng based on the advice of his doctors.
When the matter was called up, the State, represented by advocate Wim Trengove SC, told the court that the National Prosecuting Authority (NPA) had issued and served subpoenas on a number of witnesses for the medical records relevant to Zuma’s state of health and fitness to stand trial.
But Mpofu objected to the records being handed over, and advocate Muzi Sikhakhane SC, acting for Correctional Services boss Arthur Fraser, who was at the court, and other Correctional Services officials in KwaZulu-Natal, raised concerns about the matter in which his clients had been subpoenaed, and said they had reservations about handing over information without having received proper legal advice.
Mpofu said: “We have instructions to object to this procedure. There is no issue of medical fitness or unfitness of any person. Insofar as these medical records belong to the first accused (Zuma), we have the strongest objection to anyone handing up anything, particularly when that issue is not before the court.”
Reading from an affidavit that had been filed with the court to explain Zuma’s absence, Mpofu said it was the “express intention of Mr Zuma to attend the proceedings in person, but due to the advice of the doctors he will remain in Gauteng province so as to be in their reach”.
In response, Trengove said that the issue of Zuma’s health was before the court as Zuma had not come to court.
He said attendance in court was not optional, but obligatory. He said the medical records should be handed over to the court to be placed under the judge’s control, where their content would not be made public in any way.
However, Judge Piet Koen ruled that the matter should stand down until a later date, and that the court should rather focus on dealing with the special plea application brought by Zuma to have State Advocate Billy Downer removed from the case.
In the special plea case, Mpofu and advocate Thabani Masuku SC took turns to argue why Downer should recuse himself and not lead the prosecution of Zuma in the matter.
Mpofu insisted that Downer and the NPA had partly conceded that some information had been leaked, and that the case was discussed with other parties outside formal structures.
He added that another matter that had compromised Downer was that he had conceded that he shed tears when the then head of the NPA, Mokotedi Mpshe, decided to withdraw the charges against Zuma based on the spy tapes.
Mpofu argued that Downer’s tears went beyond the professional standing required, and that he had attached personal feelings to the case.
Masuku argued that Downer and the NPA were involved in a “constitutional scandal that should horrify any prosecutor”, and that allowing him to continue with the case would amount to feeding his personal power drive at the expense of violating the law.
In response, Trengove accused the Zuma team of distorting facts. Referring to the “tears” issue, Trengove said the argument was a distortion of the facts.
“The facts are that Mr Downer attended a seminar in which Mr Hofmeyr revealed the discovery of the spy tapes and the misconduct that the spy tapes revealed, and what appalled Mr Downer was this revelation of the misconduct by the leadership of the NPA who had improperly and unlawfully conspired to interfere with his prosecution. It was the indignity of the injustice of this unlawful conduct that moved him to tears.”
He said their arguments were “a rerun of old complaints which have failed in the past”.
“There is nothing new about it, nothing exceptional about it. It is a new veneer on an old complaint,” Trengove told the court.
Speaking outside the court, the spokesperson of the Jacob Zuma Foundation, Mzwanele Manyi, said the NPA’s failed attempt to have Zuma’s medical records handed over to the court was justice.
The matter will resume today at 11am to allow Trengove to finish his arguments on behalf of the NPA.