Permanent stay of prosecution for Zuma?

When the Mail & Guardian last week reported that Jacob’s Zuma’s lawyers will lodge an application for a “mistrial” if he is charged again, my gut reaction was to dismiss the report as another public relations move on the part of the Zuma camp.

That is, apart from being deeply irritated by the journalist’s use of the irrelevant American term “mistrial” when Mr. Zuma’s lawyer was probably talking about a permanent stay of prosecution on the basis that it was impossible for Mr. Zuma to get a fair trial as guaranteed by section 35(3) of the Constitution.

But as I re-read the 1997 Constitutional Court judgment in Sanderson v Attorney General, Eastern Cape I was less certain that such an application would be completely far-fetched.

On the one hand, the CC made clear that even where severe prejudice may flow from charging an accused, the remedy of a permanent stay of prosecution should only be considered as a last resort. Such a remedy, the CC said:

is radical, both philosophically and socio-politically. Barring the prosecution before the trial begins and consequently without any opportunity to ascertain the real effect of the delay on the outcome of the case is far-reaching. Indeed it prevents the prosecution from presenting society’s complaint against an alleged transgressor of society’s rules of conduct. That will seldom be warranted in the absence of significant prejudice to the accused.

Society has an interest, the Court said, in seeing people accused actually being prosecuted.

We all benefit by our belonging to a society with a structured legal system; a system which requires the prosecution to prove its case in a public forum. We also have to be prepared to pay a price for our membership of such a society, and accept that a criminal justice system such as ours inevitably imposes burdens on the accused. But we have to acknowledge that these burdens are profoundly troubling and incidental.

In my reading it will not be sufficient for Mr. Zuma’s lawyer to show that he has suffered emotional and political harm or that the case has been dragging on for more than 6 years.

The lawyers will have to show that it would be impossible for Mr Zuma to have a fair trial because the case has dragged on so long that witnesses would be unable to remember what happened or the media frenzy had so sullied the water that not even your reasonable judge would be able to come to the case with an open mind.

It is a long shot but maybe, just maybe, a sympathetic judge will listen to such an argument. It would not be because of the long time it has taken for the state to prosecute him per se, but all the other shenanigans, including the Bulelani Ngcuka statement that there was a prima facie case against Mr Zuma.

The only problem is, as the CC pointed out, a permanent stay of prosecution will not remedy the main prejudice of which an accused complains of because it will not clear his name.