ZUMA'S TRIAL DATE DELAYED (MAYBE INDEFINITELY)

C O N F I D E N T I A L SECTION 01 OF 02 PRETORIA 001047

SIPDIS

E.O. 12958: DECL: 05/15/2018
TAGS: PGOV SF
SUBJECT: ZUMA'S TRIAL DATE DELAYED (MAYBE INDEFINITELY)

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Classified By: Political Counselor Raymond L. Brown. Reasons 1.4(b) an
d (d).


1. (C) SUMMARY. On 15 April, lawyers for both ANC President
Jacob ZUMA and French arms dealer Thint informed the South
African National Prosecuting Authority (NPA) and
KwaZulu-Natal Judge President Vuka Tshabalala that they will
not be ready to start defending themselves on 4 August, a
date originally proposed by the NPA. Talk within ANC and
legal circles is that a political, rather than a legal
solution, will be found to prevent ANC President JACOB ZUMA
from being convicted for corruption, tax evasion, and
racketeering. Already we are starting to see some signs of
bias, with KwaZulu-Natal Judge President Tshabalala publicly
chastising the NPA for not personally informing him of the
timing of the case, even though the dates for South Africa's
most high-profile court case have been public for months and
leaked documents show that Tshabalala has been copied on NPA
correspondence to that effect. In practical terms, the
trial's delay will have little impact, at least in the short
to medium-term, on ANC politics as ZUMA remains the ANC's
preferred candidate to take over from President Mbeki. Late
realizations that there is a strong possibility he could be
convicted have been met with designs to circumvent
prosecution, rather than letting justice take its course and
looking for an alternate presidential candidate. END SUMMARY.

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ZUMA'S TRIAL DATE DELAYED
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2. (C) Lawyers for ANC President JACOB ZUMA and French arms
dealer Thint on 15 April told South Africa's National
Prosecuting Authority (NPA) and KwaZulu-Natal (KZN) Judge
President Vuka Tshabalala that they will not be ready to
start the trial on 4 August, as originally proposed by the
NPA. Press reports note that Zuma's lawyers will ask acting
National Director of Public Prosecutions Mokotedi Mpshe to
review the NPA's case, highlighting the NPA's decision to
prosecute ZUMA and co-accused Shabir Shaik separately,
arguing that it is unconstitutional. (NOTE: Shaik already
argued this point in the Constitutional Court and lost.
Moreover, this will be the second time Zuma's legal team will
have asked Mpshe to review the NPA's case against him. Mpshe
refused the first time they asked in September 2007. END
NOTE)


3. (C) Should ZUMA lose his battle to prove NPA procedures
were unlawful, his lawyers will then bring a permanent stay
of prosecution application, most likely arguing that "justice
delayed is justice denied" though official arguments have not
been made public. Because both arguments raise
constitutional issues, it is likely that the losers will
appeal the decisions to the Constitutional Court, even
further delaying any eventual trial, and making it a near
certainty that ZUMA will become President before the matter
is resolved.


4. (U) Thint's lawyers also are arguing that they cannot
defend themselves since two other pending court cases could
affect charges against them. The Constitutional Court still
must take a decision on the constitutionality of the search
and seizure warrants, which allowed the state to seize
allegedly incriminating documents from Zuma's attorney's
office. The NPA also has not yet succeeded in securing
evidence from the Mauritian Supreme Court.

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Q --------------
KZN JUDGE SHOWING FIRST INKLING OF BIAS
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5. (C) On 14 April, Judge Tshabalala denied knowing about the
NPA's proposed date, adding that he should have been
personally consulted in such a high-profile case, given the
amount of time the trial will take. NPA Spokesperson Tlali
Tlali rebuffed Tshabalala's comments, arguing that he had
been copied on all correspondence to the defendants regarding
its readiness to start on 4 August, that it has publicly and
repeatedly stated its readiness to start on 4 August, and
that documents to this effect have been entered into the
court registrar. In fact, documents detailing the NPA's
timetable for the trial -- which was to start 4 August and
end 12 December -- have been leaked to the press and confirm
that Tshabalala was informed.


6. (C) It is standard practice that court dates are set by

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prosecutors, that all parties must agree to the date, and
that deputy judge presidents, in consultation with judge
presidents, either assign a judge to the case or make a
number of judges available. According to Johnson, his
contacts have been eagerly awaiting to see who Judge
Tshabalala assigned to hear Zuma's case. Johnson said the
best-case-scenario would be for Tshabalala to call in a
retired judge, who has no future to risk or personal,
professional, or ethnic allegiances to Zuma.

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POLITICAL, NOT LEGAL, SOLUTION EXPECTED
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7. (C) Most of Johnson's judicial and NPA contacts believe
that the ANC will find a political, not legal solution, to
Zuma's legal troubles. Rumors of a pardon have been
circulating ANC circles for weeks now, but Johnson told
PolOff on 7 May that a pardon is unlikely since ZUMA would
have to be convicted first, something the ANC does not want.
Johnson also added that the ANC's talk of a blanket amnesty
for anyone involved in the arms scandal also would not help
Zuma since he is charged with tax evasion and racketeering,
in addition to corruption. Instead, Johnson believes the ANC
has several options, some of which are political solutions
disguised as legal options:

-- Change the Constitution to include Presidential immunity.
The ANC would likely argue international precedence; however,
it is unclear if the new law could be enacted retroactively
since ZUMA would have been charged long before he becomes
President;

-- Replace acting NPA director Mpshe with someone who will
review Zuma's file and declare there is no case;

-- The state can "lose" evidence;

-- The state can assign an inexperienced or incompetent
prosecutor to argue the case.

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COMMENT
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8. (C) In practical terms, the trial's delay will have little
effect, at least in the short to medium-term, on ANC politics
as ZUMA remains the ANC's preferred candidate to take over
from President Mbeki. Late realizations that there is a
strong possibility he could be convicted have been met with
designs to circumvent prosecution, rather than letting
justice take its course and looking for an alternate
candidate. Moreover, Judge Tshabalala's statements seem to
look favorable to Zuma, or at least antagonistic towards the
NPA, but do not bode well for justice in South Africa. While
it may be true that Tshabalala was not personally consulted,
it is highly unlikely that he was not informed of the NPA's
request for a 4 August date. The case is and will continue
to be the most high-profile in South Africa and has received
exhaustive press coverage, which included NPA's proposed
date, both in and outside South Africa.
BOST