Judgment in the 'Stop Stalingrad application' in Jacob Zuma's corruption trial

Ajouté : 2026-05-15

[00:00:07]number of women.

[00:00:13]>> Pardon me for the delay. We should have started at 10:00.

[00:00:24]uh simultaneously with the applications for leave to appeal against the judgment and order of this court dismissing Mr. Zuma's and Talis South Africa PTY LTD's applications to crush the charges in accordance with section 6 of the criminal procedure act 51 of 1977 the CPA the state represented by Mr. Trangov SC brought its own application seeking the court's intervention in what it termed Stalin grat tactic that has prevented the commencement of the trial in this matter for decades.

[00:01:09]In the main the state sought an order in the following terms. One that the hearing of evidence and the merits of the state's case against the accused must commence on the soonest possible date determined by the registar after consultation with the party's legal representatives. Two, that it be declared that the dismissal order will not be suspended by any appeal for application for leave to appeal against it.

[00:01:41]In the alternative, the state sought an order that it be declared in terms of section 18 of the Superior Courts Act 10 of 2013, the SC act, that the dismissal order will not be suspended by any appeal or application for leave to appeal against it.

[00:02:02]The state's case is supported by the founding affidavit and replying affidavit of Mr. Downer attached to the founding aid of it is a document anra WJD1 setting out in detail every pre-trial and related litigation including representations made to the public protector on 30 October 2003 through to 2018 when Mr. Zuma and Talis South Africa Py Ltd here after referred to as TALIS made their first appearance in court under the present case number CCD 30 stroke 2018 and beyond that given the nature of the application I consider it pertinent to mention certain pre-trial applications on 15 November 2018 Mr. Zuma and Talis launched permanent stay applications which subsequently served before the full court Ponguni stain and boat JJ.

[00:03:12]These applications were dismissed on 11 October 2019 under case number S and that under under um S visas Zuma and another and related matter 2020 brackets 2 BC LR1 153 KZD all attempts at overturning the full court's decision failed on 21 May 2021, Mr. Zuma entered a special plea seeking the removal of Mr. Downer as the public prosecutor.

[00:03:51]The matter served correction. The matter was argued before J on 21 and 22 September 2021.

[00:04:05]On 26th October 2021, Kun J dismissed the special plea and directed the trial to proceed on 11 April 2022 S versus Zuma in another square brackets 2022 1 L 533 KZP.

[00:04:27]That order was followed by a series of unsuccessful applications for leave to appeal, including a reconsideration application to the president of of the Supreme Court of Appeal and two applications for leave to appeal to the constitutional court.

[00:04:44]On 5 September 2022, Mr. Zuma launched private prosecution proceedings of Mr. Derer and Miss Moour. On 21 and 27th September 2022, Miss Mourn and Mr. Der respectively approached the court on an urgent basis seeking orders interdicting their prosecution by Mr. Zuma.

[00:05:11]The applications jointly considered subsequently served before Kruer Hrix and Masipa JJ on 7th June 2023 the full court granted an interdict in favor of both Miss and Mr. Downer Monour versus Zuma campaign for free expression and others as Amiki Kuraya and related matter 2023 3SA 484 KZP.

[00:05:53]Parallel applications followed thereafter.

[00:05:57]Mr. Zuma's application for leave to appeal the granting of the interdict and Miss Mourns and Mr. Downer's applications for the enforcement of an interdict despite applications for leave to appeal in accordance with section 183 of the SC act. The full court granted the enforcement order and later dismissed Mr. Zuma's application for leave to appeal.

[00:06:24]An appeal against the enforcement order was subsequently dismissed by the Supreme Court of Appeal in S in Zuma versus Downer in another 2023 ZCA 132 square brackets 2023 all SA 644 SCA.

[00:06:48]A subsequent application for LIF to appeal to the constitutional court failed.

[00:06:54]An application for leave to appeal against the interdict was dismissed by the Supreme Court of Appeal.

[00:07:00]So was the application for reconsideration by the president of the Supreme Court of Appeal.

[00:07:06]On 9 April 2024, this court removed the private prosecution proceedings of Mr. Towner and Miss Moour from the two applications then served before this court. An application by Mr. Zuma for the removal of Mr. Ter as the public prosecutor. Second application and the application by Tales supported by Mr. Zuma for the quashing of charges in terms of section six of the CPA.

[00:07:36]Both applications were dismissed and so were subsequent applications for leave to appeal.

[00:07:42]The application for leave to appeal in respect of the removal of Mr. downer as the public prosecutor has since been dismissed by the Supreme Court of Appeal per ZP and Mumi JA.

[00:07:56]I am not certain as to what the position is regarding an application for leave to appeal against this court's refusal to quash the charges against Tales and Mr. Zuma.

[00:08:07]Given the nature of the application, I do not consider it necessary to traverse the content of an WJD2 captioned quote history of Stalinrad tactic.

[00:08:21]In reply, Mr. Zuma and Talis relied on answering affidavit depos by their respective attenues Messias Tusini and Dunston Smith.

[00:08:32]Mr. Zuma raised three points in limina.

[00:08:37]Firstly, he submitted that the Stalin grant defense on which the present application is anchored should be disregarded. It having been decided and rejected by this court and Kung J.

[00:08:52]He further submitted that it is not open for this to this court to revisit these binding decisions unless they are shown to have been clearly wrong.

[00:09:04]Secondly, he submitted that section 18 of the SC act does not find application in the present case and that the appeals are sought in terms of section 316 of the CPA and not section 17 of the SA act.

[00:09:22]Thirdly, he submitted that the application is incomplete and therefore superfluous in that in as much as it relates to both accused persons, the content of the founding avid makes it plain that the allocations of a Stalin grat defense tech strategy are direct directed only at accuse number one, Mr. Zuma. I deal with these points in luminina in turn.

[00:09:53]The contention that this court and Kunj made a factual finding that Mr. Zuma has not implemented a Stalin Grat litigation strategy is without merit.

[00:10:05]No such finding was made either by this court or Kung J.

[00:10:10]Neither the judgment of this court nor Kung J's judgment contains a factual finding that Mr. Zuma has not implemented a Stalinrad litigation strategy.

[00:10:24]All this court did in its judgment was to observe that there had been a lengthy delay in the prosecution of Mr. Zuma entire.

[00:10:34]The mere fact that it decided not to attribute blame to anyone cannot be said to amount to a factual finding that Mr. Zuma has not implemented a Stalin litigation strategy. In his judgment, Kun J made an observation that and I quote, "Mr. Zuma has challenged many decisions adverse to him in the past, usually invoking the entire appeal process to the highest court in the land and in many instances has been unsuccessful which resulted in inevitable delays.

[00:11:10]He is only he is on record through previous council representing him that he will continue exercising all rights available to him. Close quotations.

[00:11:20]Kung proceeded that the exercise of those rights as much as they may be viewed with suspicion and distrust from certain quarters as resulting only in delays which only favor him. do not per se amount to an abuse of those rights. A finding of malafides will require more and clear proof by the state which I cannot make on the allegations in the present papers alone in quotations.

[00:11:56]There is nothing in the observation made by Kung J that suggests that he found as a fact that Mr. The Zuma has not implemented a Stalin Grat litigation strategy.

[00:12:08]Instead, he appears to have made a conscious decision not to make a finding of Malafides based on the information at his disposal. What is clear though is that the full court of this division Krua Hendris and Masipa JJ on 7 June 2023 the interdict against the private prosecution proceedings and 3 August 2023 the enforcement order the Supreme Court of Appeal on 13th October 2023 found as a fact that Mr. Zuma had implemented a Stalin CR litigation strategy.

[00:12:48]This point in Limina must therefore fail.

[00:12:54]The second point in Lima that the state only focused its attention on Mr. Zuma and not Tales is without merit. The state in its founding Afidavit has accused both Mr. the Zuma and Tales of having implemented a Stalinrat strategy albeit to a lesser extent in respect of Tales.

[00:13:16]Again, this point in Lima must faith.

[00:13:20]Regarding the third point in Lima, the state only relied on section 18 of the SC act as a default position.

[00:13:30]Its case does not hinge on section 18.

[00:13:34]In actual fact, it was argued on behalf of the state that section 18 does not apply in the present proceedings. The st application is premised on interlocatory applications brought in criminal proceedings which are precluded by the definition of appeal under section one of the SC act which provides and I quote appeal in chapter 5 does not include an appeal in a matter regulated in terms of the criminal procedure act 1977 brackets act number 51 of 1977 or in terms of any other criminal procedural law close quotations.

[00:14:12]The position taken by the state was that if it were found that section 18 does apply, then the state will rely on section 18 subsection 2 which provide and I quote subject to subsection 3 unless the court under exceptional circumstances orders otherwise the operation and execution of a decision that is an interlocation order not having the effect of a final judgment which is the subject of an application for leave to appeal or of an appeal is not suspended pending the decision of the application or appeal transport quotations the application brought by Talis supported by Mr. Zuma for the question of judges is no doubt interlocatory in nature that circles the points raised in limina and now turn to the merits of the state's case it was submitted on behalf of the state that the application is not intended to cail tales and Mr. Zuma's right to bring whatever application they wish to bring to the court. It is indeed correct that the court has no authority or power to do that. Section 3530 of the constitution grants an accused person the right of appeal to or review by a higher court.

[00:15:45]That right also is also regulated by section 316 of the CPA which describes the timing and the manner in which the right entranted in section 3530 is to be exercised.

[00:15:59]What this court has been called upon to do is to exercise its inherent power under section 173 of the constitution to protect and regulate its own process and to develop the common law taking into account the interest of justice.

[00:16:17]There has no doubt been an inordinate delay in the prosecution of Mr. Zuma and Tales. It seems to me that without this court's intervention, there is a likelihood of grave injustice or the administration of justice being brought into disrepute.

[00:16:36]Mr. Ru argued that the danger in granting the relief sought by the state is that it is final in nature.

[00:16:45]If the Supreme Court of Appeal were to find, so he argued, that Talis's right to a fair trial will be violated by the continued prosecution, then that will be the end of the trial against Tales.

[00:16:59]The question that follows, therefore, so the argument goes, is whether it is in the interest of justice to disregard the effect of the relief sought and carry on with the trial.

[00:17:13]regarding interlocatory applications brought in criminal cases. Mahoka JA in Lupondo versus the state stated the following and I quote in Wallhouse versus additional magistrate Johannesburg.

[00:17:32]This court enunciated the following principles in this regard.

[00:17:38]By virtue of its inherent power to restrain illegalities in the lower courts, appealed courts may in a proper case grant relief by way of review, interdict or mandamus against the decision of a lower court given before conviction. My emphasis, this power must be exercised sparingly depending on the circumstances of a given case.

[00:18:06]The court will intervene only in rare cases where grave injustice might otherwise result or where justice might not be attained by other means. In general, however, it will hesitate to intervene, especially having regard to the effect of such a proper a procedure upon the continuity of proceedings in the court below and to the fact that redress by means of review or appeal would will ordinarily be available.

[00:18:41]Close quotations.

[00:18:43]Okvi Thompson JA in Wall has proceeded to say and I quote the prejudice inherent in an accused being obliged to proceed to trial and possible conviction in a magistrate court before he is accorded an opportunity of testing in the Supreme Court the correctness of the magistrate's decision over ruling a preliminary and perhaps fundamental contention raised by the accused does not per se necessarily justify the Supreme Court in granting relief before conviction close quotations.

[00:19:23]Wallhouse was later applied and affirmed in Ishmaile and others versus additional magistrate Wayneburg and another the principle set out in two preconstitution judgments of wall of of Wallhouse and Ishmile was recently affirmed by the Supreme Court of Appeal in Matabula versus the state and another and by the constitutional court in director of public prosecutions Johannesburg and another versus Schulz and others director of public prosecutions Bloom Fontaine versus Toyota.

[00:20:03]In both cases, the court considered applications to halt criminal proceedings.

[00:20:11]In Color, the constitutional court threw an important distinction between two categories of states conduct when considering applications to halt proceedings.

[00:20:23]Mahawk JA in Lupon describes these categories as follows and I quoted. The first category concerns cases in which the criminal prosecution is preceded and tainted by illegal and egregorious state conduct. The second concerns cases where unlawfulness or irregularity arises from a bonafide area in the process. Criminal proceedings will be halted only in the former category because it will amount to quote unquote an affirmed to the public conscience or quote unquote will be contrary to the public interest in the integrity of the criminal justice system for a criminal trial to proceed in such circumstances.

[00:21:18]close quotations.

[00:21:20]The Supreme Court of Appeal in Lupondo stated that the constitutional court in Colota emphasized the need to strike an appropriate balance between upholding the rule of law and combating im impunity.

[00:21:36]As a foretual finding has been made several times not only by the full court of this division and the housing division but also by the Supreme Court of Appeal that Mr. Zuma is implementing Stalin defense tactics to delay the commencement of the trial.

[00:21:57]That finding stands until it is set aside by a court of competent jurisdiction.

[00:22:06]In the words of Wallace JA in Moyo and another versus Minister of Justice and Constitutional Development and others, the term Stalin Grant defense has become a term of art in the armory of criminal defense lawyers. By allowing criminal trials to be postponed pending approaches to the civil courts, justice is delayed and the speedy trials for which the constitutional the constitution provides do not take place.

[00:22:38]I need hardly add that this is of a particular benefit to those who are well resourced and able to secure the services of best lawyers.

[00:22:51]In my view, the interest of justice demand that an order be made directing the commencement of the trial regardless of the order dismissing Tales's and Mr. Zuma's applications for leave to appeal this court's dismissal of their applications to have charges against them quashed.

[00:23:10]Without this court's intervention, it is my view that there is a likelihood of grave injustice or the administration of justice being brought into disrepute.

[00:23:21]It is not only the interest of Mr. Zuma and Tales that the court has to take into account when considering the state's application but but also the interests of the society.

[00:23:33]A court has an obligation to guarantee public confidence in the judicial authority and administration of justice.

[00:23:42]This court owes the public a duty to facilitate the expeditious commencement and management of the criminal trial.

[00:23:51]The prosecution of a crime is a matter of some constitutional importance. S versus POM square brackets 2005 Z ACC 10 2007 brackets 1 S AR 2566 CC at paragraph 144. Failure by the court to intervene in circumstances where it has sufficiently been established that the strategy implemented by the defense is designed to delay the commencement of the trial will no doubt compromise the integrity of the court and the administration of justice.

[00:24:29]Concerns are likely to arise among reasonable members of the public if the trial is halted without Mr. Zuma and Tales facing charges leveled against them.

[00:24:40]I am unable to point to any cognisable harm or grave injustice that might result if the child proceeds regardless of pending interlocatory applications.

[00:24:53]Mr. Zuma and Tales are not without retreat. The right of appeal is protect their right of appeal is protected under section 316 of the CPA right with section 3530 of the constitution.

[00:25:10]For the above reasons, I make the following order.

[00:25:14]It is directed that the trial is to proceed irrespective of any interlocatory applications either by the state or the defense. Two, the parties are directed to approach the registar for a for suitable trial dates.

[00:25:42]The metal will stand down and the parties will be allowed the opportunity to approach the registra for suitable trial dates. Please quarter.

[00:26:07]So, we need to go to the