WHY is Judge President (JP) Achmat Jappie of the KZN Division “secretly discussing with the state” an issue that he knew “the Honourable DJP (deputy judge president) was already communicating with all the parties?”This is the question posed to both the JP and DJP Mjabuliseni Madondo by former President Jacob Zuma’s attorney, Eric Mabuza, in a letter dated 25 May 2020. Letter to the Hon Justice Jappie JP and Madondo DJP 25.05.2020
Mabuza raises issues of integrity of the court, the violation of an “established and commendable practice to hear all concerned parties in respect of such matters as allocation of dates of hearings. The reasons for this are obvious and related to fairness, equality of arms and the elimination of any reasonable perceptions or apprehension of bias.” In addition, he questions the exclusion of both the Zuma legal team and the Deputy Judge President, from the ex parte communication between the Judge President and the State’s Advocate Billy Downer SC.
Mabuza’s complaint follows the discovery of email correspondence dated 21 May 2020 addressed to Jappie by Downer SC “allegedly sent pursuant to your (Madondo’s) request to be informed of the expected duration of the trial and a proposed trial date”. Mabuza complains that they were not copied in the correspondence “and we are not privy to the reasons, justification and precise nature of the ex parte communication discussion between the Honourable and Adv Downer SC and whether there were other discussions of this nature”.
He adds: “We register that all this correspondence was not disclosed to us voluntarily. The State disclosed it only after some prompting by our Senior Counsel on 22 May 2020, to confirm their telephone discussion on the previous day and to enquire whether Adv Downer SC had written any letter to us or the court. It is difficult to accept that our exclusion from both the telephone discussion with the Honourable Judge President and the follow up emails were not deliberate and initiated to gain some strategic advantage over the accused”.
This is how this entire saga unfolded – and we use the word saga unless Jappie and Downer give a logical and satisfactory explanation of how this “mishap”, as Mabuza describes it, occurred.
In response to the email by Madondo requesting a possible date for the State v Zuma trial and duration of proceedings, Downer sent an email on 20 May 2020 in which he informed the “Honourable Deputy Judge President that the Judge President had directed the same questions to the NPA regarding the expected duration of the trial and a trial date”. Again, the Zuma legal representatives were not copied in this response despite Madondo having copied all parties in his original email.
“Again, for the record, we still have not seen the precise questions which the Honourable Judge President allegedly directed to the State or whether such questions were in writing or oral. We place on record again that we have not had any ex parte oral or written communication with the Honourable Judge President or Honourable Deputy Judge President regarding this matter. We would consider it inappropriate to do so unless it was with the consent and knowledge of all the parties involved as to the exact issues discussed and the reasons thereof” Mabuza added.
It appears there were parallel communications between the Judge President and the State without the knowledge of the Zuma legal camp, on one hand, and the Deputy Judge President and all parties, on another.
Mabuza said they understood the DJP to be the sole judicial officer assigned to manage the case and with whom all parties should communicate and yet, it is apparent from the email correspondence that Jaapie was the one who initiated the ex parte communication with Downer.
“It is indeed of grave concern to us and our client that the Honourable Judge President discussed with the State matters which are directly related to or are connected to or have a material bearing on the merits of the case. For, example: the Honourable Judge President and the Stale discussed, interalia:
- First, fact that the State will apply for the amendment of the indictment to include e number of payment$ from the Shaik/Nkobi group to Mr Zuma that FTI discovered during their review of the old KPMG report. With respect, we consider it inappropriate that the Honourable Judge President would want to know the State’s evidence against our cfient before the commencement of the trial
- Second, the fact that the State will request the trial to commence in the first term of 2021. It is well recorded and has been boisterously submitted by the State over the years to the court and the general public that it has always been ready to commence with the trial. It is self evident that these discussions between the Honourable Judge President and the State extended beyond a mere enquiry about the commencement of the trial. In any event, whatever the discussions were about, we and our client regard them as highly inappropriate and unfortunate. They open themselves to the impression that the State is engaged in a lobbying exercise for its preferred postponement and its exclusive convenience.
- Lastly, how the State should respond to the Honourable Madondo DJP. It is clear from the sequence of the emails mentioned above that when he replied to the enquiry from the Honourable DJP, Adv Downer SC had already discussed the matter with the Honourable Judge President. Yet he omitted to mention or disclose in full to the Honourable DJP all the issues he had discussed with the Honourable Judge President.
After years of delays, the arms deal corruption case seemed to be ready for trial this year but the prosecution through the emails to Jappie, requests a postponement from June 23 trial date to February 2021. “Sikhakhane informs me that Zuma will in all probability not move from his position that a trial date later than October will not suit him. [Barry] Roux for Thales would find suitable either an October this year or February next year date”. Sikhakhane is Advocate Muzi Sikhakhane SC, Zuma’s lead lawyer.
“We remind all involved that this matter is very sensitive and has attracted much public interest for several years, during which our client was castigated for delaying the trial, adopting “Stalingrad Tactics” and avoiding his day in court.
“No amount of assurances from his legal team that there may be some logical explanation for these mishaps seem to be totally satisfactory to our client at this stage. Understandably, he apprehends that these ex parte discussions land themselves to the suspicion that their purpose is to disadvantage him in the manner in which the court approaches his case,” Mabuza added.
The defence further asks for an explanation of how the ex parte communication came about failing which they will report the matter to the Judicial Services Commission (JSC), the Chief Justice or the National Prosecutions Authority (NPA).
“Unless a satisfactory explanation is given our client will be left with no choice but to suspect that there are attempts to manipulate the composition of the Bench which ought to hear this matter. We have indicated to our client that this must be some misunderstanding or genuine error. However, given the history of this matter and how he believes he has been persecuted by the system, he remains apprehensive and concerned by what appears to be secret and inappropriate discussions between the State and the Honourable Judge President.
“In the circumstances, we are instructed to register our client’s strong objection to the conduct referred to above. In addition, our client humbly requests an explanation as to how this situation was allowed to occur. On the basis of that explanation and any proposed remedial measures, he will consider whether or not there is still a need to escalate the matter any further to the Judicial Services Commission and/or the Chief Justice or the Integrity Division within the office of the National Director of Public Prosecutions. It cannot be overemphasized that the stakes are very high in this litigation, which may arguably be the biggest and much anticipated case in post- Apartheid South Africa. We submit that the ex parte discussion referred to above betrays a lack of appreciation for the nature and impact of this trial on our client and the persecution he has endured at the hands of the State. We would respectfully request that this trial be approached with much restraint, absolute integrity and circumspection by all involved”.