Authored By: Sibongakonke Mkhize
University of South Africa
- INTRODUCTION
The significance of this case is derived from the importance of accountability of state officials which includes the president of the country. It is the reality of applying the Rule of Law to the highest-ranking person in the country and witnessing how even the president is not above the law. The trial clarifies the limits of fair-trial delay arguments and addresses the abuse of court processes through tactics that delay judicial functions. As a long running case it sets the tone for South Africa’s credibility when it comes to fighting high level corruption.
- FACTS
Prior to the case ever taking place there were significant historical that took place that exponentially built the foundation of the case. First respondent Jacob Zuma had charges piling up against him from the Arms Deal that took place in 1999. South Africa entered into a multi-mullion rand arms procurement deal with Thales Group. It was alleged that Zuma, the then Deputy President of the Republic of South Africa received bribes via his advisor Schabir Shaik to protect the Thales Group from investigations and secure political influence. This is the precise origins of the case. In November 2000, the then head of the Investigating Directorate: Serious Economic Offenses in the National Prosecuting Authority initiated a preparatory investigation regarding the 1999Arms Deal under 28(13) of the National Prosecuting Act. The legislative piece stated, “If the Investigating Directorate considers it necessary to hear evidence in order to enable him or her to determine if there are reasonable doubts to conduct an investigation in terms of subsection 1(a), the Investigating Directorate shall hold a preparatory investigation.”1 Therefore, the purpose of the preparatory investigation was to collect evidence to determine if there were reasonable grounds to investigate the allegations of fraud and corruption. A year later in the year 2000, a meeting with the Auditor-General, Public Protector, National Prosecuting Authority representatives and the Special Investigating Unit was held. It was concluded that a Joint Investigation Team (JIT) be established with the purpose of investigating the Arms Deal. In November 2001, the JIT submitted a report approved by Parliament stating that there were irregularities in the deal although, no evidence had been presented to show these inconsistencies affected the selection of contractors. Consequently, investigations into possible criminal activities were ongoing.
Later findings reported a conflict of interest in the Arms Deal whereby Shamin Shaik, the brother of Shabir Shaik had links to the companies involved but after announcing this, he failed to recuse himself and continued participating in the proceedings. Records from Thales consisted of audit working papers which referenced a report of bribery involving a senior government official with ties to the Arms Deal. Upon examining the relationship between Jacob Zuma and Shabir Shaik, a witness testified under oath revealing that Zuma and Shaik had a long-standing friendship and that Shaik made various payments on Zuma’s behalf.2
- LEGAL ISSUES
The legal issues presented before the court focused heavily on the special plea raised under the Criminal Procedure Act. In order, the first legal issue raised was whether the lead prosecutor had the title to prosecute. It had to be determined by the court if the then lead prosecutor Mr Downer SC, was legally authorised to prosecute the matter in terms of s106(1)(h) of the Criminal Procedure Act. This issue was mainly regarding prosecuting authority.
Another legal question raised was whether the prosecutor should be removed from the on going case due the alleged lack of title. It also had to be determined whether the lack of prosecutorial title would entitle the accused to an acquittal under s106(4) of the Criminal Procedure Act. The court had to consider how the special plea had to be adjudicated whether on affidavit or through oral evidence. The res judicata or issue estoppel doctrines which prevent the re-litigation of claims or issues that have already been decided by a competent court, applied to criminal proceedings.3 Tied to the previous issue, the court had to determine whether the prosecution process was being abused and the courts power to prevent such under its constitutional authority. Lastly, the court had to decide whether the special plea could proceed in the absence of the accused while still complying with fairness and statutory requirements.
- ARGUMENTS PRESENTED
4.1 First Respondent (Accused) – Jacob Zuma
The accused argued tat the prosecutor lacked the title to prosecute, therefore the prosecutorial authority of advocate Dower SC was questioned and believed he should be removed. The argument was presented on the basis of s106(1)(h) of the Criminal Procedure Act. Zuma also argued that if the court finds the prosecutor lacks title and authority, he must be acquitted of all charges under s106(4) of the Criminal Procedure Act. Zuma’s challenge towards the prosecutor’s title was grounded in the broader context that the prosecution was not validly constituted therefore, his continued involvement undermined the legitimacy the proceedings.
4.2 Accused Two – Thales South Africa
Thales SA first argued that the decision to prosecute for the charge of racketeering was taken without proper authorisation and pursued without proper purpose. They submitted that the National Director of Public Prosecutions had no sufficient evidence therefore, there was no reasonable and probable cause to prosecute. Thales Sa contented that the alleged corrupt agreement and payments of bribery should be treated as a singular offence not multiple, 783 payments were made. This interpretation of offences referenced the S v Shaik case.4 Finally, Thales SA argued that a single transaction was artificially split into multiple counts by the prosecution. This was done to meet the requirements of the definitional elements of a pattern of racketeering activity; this argument was grounded by the definition of racketeering in the Prevention of Organised Crime Act 21 of 1998.5
4.3 Applicant – State
The state opposed Zuma’s special plea arguing that the prosecutor was lawfully authorised to prosecute and there was no legal basis to remove him under s106(1)(h) of the CPA. The State remained in its position, holding that there was sufficient evidence before the National Directorate of Public Prosecutions consequently, this justified the decision to further prosecute. The State argued that under corruption laws, a mere offer and acceptance to pay bribery is a complete offence therefore, the payment for bribery is not a requirement for liability. This argument also advocates for the separate counts for every agreement and payment made. The State submitted that the conduct satisfied the requirements of a pattern of racketeering activity under the Prevention of Organised Crime Act. Lastly, the State argued that actual participation in racketeering had been established, referencing the S v Eyssen case.
- COURTS REASONING AND ANALYSIS
The courts analytical approach began with the interpretation of s106(1)(h) of the CPA which stated, “When an accused pleads to a charge, he may plead that the prosecutor has no title to prosecute.”6 Upon examination, the court concluded that the term “title to prosecute” refers to lawful authority not conduct not perceived bias. Thereafter, it assessed Zuma’s claims
whether they were challenging legal authority or referring to fairness and misconduct. The court emphasized that the provision is meant to address the objective legal incapacity of the prosecutor not dissatisfaction. The court found that Zuma’ argument did not concern title but the conduct and integrity of the prosecutor. Therefore, the argument did not fall in the scope of s106(1)(h) of the Criminal Procedure Act. Despite this the court noted that allegations of such a nature must be dealt with through the appropriate legal mechanisms not through special pleas. Regarding Zuma’s request for acquittal, the court found that the plea did not meet the threshold under s106(1)(h) and followed with the fact that the plea had no legal foundation. Zuma’s argument regarding the prosecutor’s title was recharacterized since his argument was factually regarding fair trial rights not prosecutorial authority. Zuma’s claims were substantive fairness complaints. The court made a distinction between the authority to prosecute and the manner of prosecution.
Thales SA’s claims of lack of reasonable and probable cause were scrutinized and it was held that the prosecution does not need to prove guilt at this stage but sufficient basis to proceed with the trial. The structure of offences under the Prevention of Organised Crime were analysed and it had to be examined whether multiple acts constituted separate offences as per Thales SA’s argument that the agreements and payment for bribery should be one offence not multiple. The nature of corruption offences was considered, and a distinction was made between agreement to corrupt and execution via payment in this instance. The courts accepted that the above acts can be legally distinct but rejected the claim that everything must collapse into a singular offence due the pattern that arises from related but separate acts. The court finally evaluated whether the prosecution was lawfully constituted ad confirmed that through the National Prosecuting Authority.
- UDGEMENT AND RATIO DECIDENDI
The High Court dismissed Jacob Zuma’s special pleas brought in terms of s106(1)(h) of the CPA. The court found Downer had lawful authority to prosecute under the National Prosecuting Authority and there was no legal basis for acquittal. The true meaning of “no title to prosecute” targets competence and legal authority. A majority of Zuma’s complaints have already been dealt with in previous cases therefore the courts applied the res judicata doctrine, preventing the re-litigation of previously determined matters by competent courts. Consequently, the court is bound by prior decisions under stare decisis. There was no evidence suggesting Downer had lacked legal standing to prosecute.
- CRITICALANALYSIS
The procedural affairs of the case are quite strong and just, not making any room for contradictions of any kind. Although the court chose a narrow approach when it came to the interpretation of s106(1)(h) of the Criminal Procedure Act. The court held that the meaning of the term “no title to prosecute” only referred to the question regarding legal authority and competence, and not bias, misconduct or integrity. This approach separates legality from fairness and undermines. If a prosecutor is compromised and still participates in legal proceedings, the integrity of the prosecution could be undermined. A broader and less restrictive approach that links fair trial rights under s35 of the Costitution and prosecutorial authority would have been the more constitutional and integral approach.
The court avoided a factual inquiry into the allegation Zuma made against Downer. Allegations as serious as those raised against Downer should be set aside procedurally but further invested. The courts avoidance suggests that efficiency should be prioritised over legitimacy. Yes, Downer is a prosecutor under the National Prosecuting Authority, but the court had to assess whether he was credible. In South Africa, the Constitution is the supreme law of the land, it overrides every other statutory law and legislative piece. But in this judgement, the court strongly depended on statutory wording and less on constitutional engagement. The courts could have dwelt more on fair trial rights, the rule of law and prosecutorial independence. This case is tied to the arms deal scandal, allegations of state capture (political corruption whereby the private interests manipulate government institutions to serve their own interests). The court could have reinforced accountability with regards to allegations against Downer and the rule of law to ensure the trial took place.
- CONCLUSION
Whilst the case is procedurally strong, there are some objectives that could have been handled better. The importance of the Rule of Law and constitutional engagement should have been more emphasised over statute. Further investigation into Downer’s credibility should have taken place as part of the trial to determine whether he was compromised.
Reference(S):
1 National Prosecuting Authority Act 31 of 1998 s28(13)
2 S v Zuma and Another [2021] ZAKZPHC
3 J Mitchell & E Skinner, ‘The doctrine of res judicata’ (Lexis Nexis, 06 June 2025) The doctrine of res judicata | Legal Guidance | LexisNexis accessed 23 April 2026
4 S v Shaik
5 Prevention of Organised Crime Act 21 of 1998 s2
6 Criminal Procedure Act 51 of 1977s106(1)(h)
