Stalingrad end in sight

Stalingrad end in sight

It seems that, to all intents and purposes, the long running on and off prosecution of former State President Jacob Zuma has one last move left before the prosecution will finally commence. His use of the Stalingrad strategy, which is named after the World War 2 use of defensive tactics used by Russian forces to stop Stalingrad being taken by the Axis forces, has achieved widespread notice and comment.

For those interested in the origin, the seminal work is Enemy at the Gates: The battle for Stalingrad by William Gates. As an overview, the comment by one of his former advocates likening the legal strategy applied to fighting in every room, street, and house via using all available legal mechanisms to delay court adjudication on charges faced encapsulates the stratagem.

The Stalingrad strategy is optimal where court costs and legal fees are covered by a third party, and in Zuma’s case delaying his potential prosecution on fraud and corruption charges, the funding of his legal fees via the fiscus enabled the strategy to be effectively deployed.

With the option of Statepaid legal costs removed and adverse costs orders, as well as the recovery of historical fees paid being recovered the ability to appeal decisions and delay the process would appear to have been largely negated in respect of the Zuma trial going forward.

At present, the final leg available to him would be the filing of papers appealing the decision in respect of the recent decision of the KwaZulu-Natal Division of the High Court dismissing the Application for a Permanent Stay of Prosecution brought by Jacob Zuma and Thint.

In November 2006, Shabir Shaik started to serve a 15 year sentence imposed in June 2005 by Justice Hilary Squires after being found guilty of corruption and fraud in respect of a series of payments made to Jacob Zuma via Shaik’s company Nkobi Holdings. The sentence and conviction was confirmed by the Supreme Court of Appeals.

Jacob Zuma had previously been Deputy President of South Africa and led the African National Congress, which would have meant that he would succeed President Mbeki as State President.

However, following the conviction of Shabir Shaik, Zuma was dismissed by President Mbeki in June 2015 and, following a number of delays in December 2007, the Scorpions indicted Zuma to stand trial on counts of racketeering, money laundering, corruption and fraud.

In what can be seen as the beginning of the Stalingrad strategy, Zuma appealed the indictment and charges in the Natal Provincial Division of the High Court, and on 12 September 2008 Justice Chris

Nicholson found in favour of Zuma. Justice Nicholson based his decision on procedural grounds, including that there had been political interference in the decision and timing of the indictment and found the decision of the National Prosecuting Authority (NPA) to charge Zuma was invalid and ordered it set aside.

Thabo Mbeki denied political interference, but was forced to resign at the end of September 2008 and, following the 2007 Polokwane Elective Conference result, Jacob Zuma became State President following the interim term of Acting President Kgalema Motlanthe.

In October 2008 the Scorpions were abolished following a vote in Parliament which was closely on party political lines and Jacob Zuma became State President on 9 May 2009 following the African National Congress winning the national election on 6 May 2009.

In between the departure of Thabo Mbeki and the election of Jacob Zuma, the Supreme Court of Appeal found in favour of the NPA and overturned (in a particularly scathing judgment delivered by Justice Harms) the decision of Justice Nicholson on legal grounds.

In the judgment the Supreme Court of Appeals also reversed adverse commentary delivered by Justice Nicholson against then Minister of Justice Penwel Maduna, Heads of the NPA Mpshe and Nguka, Thabo Mbeki and his then Cabinet.

In the background the NPA had, going on from the decision of Justice Msimang in 2006 to strike the initial charges against Zuma from the roll, been investigating and, in an odd twist, the same Senior Advocate, Billy Downer, has been leading the investigation and prosecution for close to 20 years. Downer was the voice within the NPA that argued strongly against the decision of the then National Director of Public Prosecutions Mpshe to withdraw charges against Zuma. Even further back in 2000, a “super investigating” team was set up by then National Director of Public Prosecutions Bulelani Ngcuka to probe the multibillionrand arms deal and associated allegations of bribery and corruption and this team was responsible for the prosecution of Shabir Shaik. Downer was one of the initial team members and led the prosecution of Shaik and was strongly against the decision taken by Belulani Nguka to separate the prosecutions of Shaik and Zuma at an early stage given the impracticalities of running two separate trials were immense and the consequences of Nguka’s decision are still in the court system currently. Downer was equally opposed to the decision of National Director of Public Prosecutions Mpshe to shut down the prosecution based on the spy tapes allegations and the subsequent striking down of applications in the KwaZulu Natal Division of the High Court. In the Application for a Permanent Stay of Prosecution Zuma’s documentation contained a number of allegations and inferences against Downer personally which led to Downer suing Zuma and successfully obtaining an order from the High Court for these to be struck from the Court record. This level of animosity and advisability of including personal attacks in court affidavits is unusual and questionable as a tactic.

The case against Jacob Zuma has been set down for hearing to commence on 4 February 2020 in order to allow for the appeal process against the decision of the High Court denying the application made by Zuma and Thales for a permanent stay of prosecution. This delay is in order for Thales and Zuma to lodge documents in respect of their appeal which must be lodged by 1 November 2019. This may in effect be the last roll of the Stalingrad dice in that, if the appeal is unsuccessful, Zuma faces prosecution on the listed charges of racketeering, money laundering, corruption and fraud. Given the length of exposure that Billy Downer has had in the matter it is almost certain that he will be involved in the prosecution if not the lead prosecutor. The one point of query is whether Downer will be able to complete the prosecution as he is nearing retirement. This may be a slight diversion in the process but would be a neat closure of loop involving Downer, Zuma and the legal system that Downer deeply believes in. The process in the Pietermaritzburg High Court commencing in February 2020 (should the appeal be unsuccessful) will be watched with keen interest locally and internationally particularly given the recent imposition of sanctions against members of the Gupta family and associates by the United States.

PETER BAGSHAWE holds a Bachelor of Law degree from the former University of Rhodesia and a Bachelor of Laws degree from the University of the Witwatersrand.