S v Zuma and Thales South Africa (Pty) Ltd

Jacob Zuma (first accused) and Thales South Africa (Pty) Ltd (second accused) face various criminal charges arising from the Arms Deal. Both pleaded not guilty. Zuma raised a special plea in terms of section 106(1)(h) of the Criminal Procedure Act 51 of 1977 (CPA), contending that the lead prosecutor, Mr William Downer SC, lacks title to prosecute and should be removed. Zuma alleged that Downer lacks independence and impartiality, has been biased against him, and that his conduct violates Zuma's fair trial rights under section 35(3) of the Constitution. Zuma raised 14 specific grounds of complaint, including: alleged political interference; Downer's conduct in the Shaik trial; Downer's opposition to the decision to discontinue prosecution in 2009; alleged leaks to media; involvement of foreign intelligence; failure to report misconduct; and leaking of medical information. The special plea was adjudicated on affidavit evidence exchanged between the parties, rather than by oral testimony. The trial had been repeatedly postponed for various reasons, including Zuma's medical condition and his incarceration for contempt of court.

• What is the correct interpretation of 'title to prosecute' in section 106(1)(h) of the CPA?
• Does 'prosecutor' in section 106(1)(h) refer to the individual prosecutor or the State/NPA?
• Can a lack of independence, impartiality or bias deprive a prosecutor of 'title to prosecute'?
• Should the term 'title to prosecute' be given an extended meaning to include allegations of prosecutorial misconduct or violation of fair trial rights?
• Can a special plea under section 106(1)(h) be determined on affidavit evidence rather than oral evidence?
• Do the principles of res judicata and issue estoppel apply to prevent relitigation of issues previously decided in other proceedings?
• Has Downer been shown to lack title to prosecute on any of the 14 grounds alleged by Zuma?
• If the special plea succeeds, is Zuma entitled to acquittal under section 106(4) of the CPA?

The special plea was dismissed. The matter was directed to proceed to trial on the not guilty pleas of both accused. The court order of 10 August 2021 regarding medical examination of Zuma remained in force as clarified in the judgment.

1. In section 106(1)(h) of the CPA, 'prosecutor' refers to the individual person acting as prosecutor in court, not the State or NPA as institution (following Ndluli v Wilken NO). 2. 'Title to prosecute' in section 106(1)(h) bears a narrow meaning relating to the prosecutor's legal standing, authority, proper appointment, necessary qualifications, and specific authorization required to prosecute particular charges. 3. Lack of independence, impartiality, or allegations of bias do not constitute lack of 'title to prosecute' under section 106(1)(h). 4. The protection for an accused against prosecutorial bias or lack of independence lies in the constitutional right to a fair trial under section 35(3) of the Constitution, not in the special plea mechanism. 5. Whether an accused has received a fair trial is best determined by the trial court at the end of the trial when all evidence has been heard and its materiality can be properly assessed. 6. A special plea under section 106(1)(h) may properly be determined on affidavit evidence where that procedure is agreed by the parties and sanctioned by the court. 7. Principles of stare decisis bind lower courts to follow rationes decidendi of higher courts, and principles of issue estoppel (properly applied with caution) prevent relitigation of issues previously decided between the same parties, even across civil and criminal proceedings. 8. A prosecutor's persistent view that there are reasonable prospects of successful prosecution does not demonstrate lack of independence or deprive the prosecutor of title to prosecute.

1. The court expressed doubt (without deciding) whether lack of specific statutory authorization to prosecute particular charges should properly be regarded as affecting 'title to prosecute', given the absurd consequences that could follow. 2. The court observed that section 106(4) CPA appears to require automatic acquittal if any plea other than lack of jurisdiction succeeds, without discretion, though this interpretation could lead to absurd results. 3. The court suggested that virtual hearings in criminal trials, while possible in appropriate circumstances under the court's inherent powers, should not be the default position, with in-person hearings being preferable. 4. The court noted that the wide terms of section 41(6) of the NPA Act (prohibiting disclosure of information) may raise constitutional concerns and may not prohibit all communications with media about investigations. 5. The court observed that while some irregularities may render a trial unfair, not every irregularity has that effect - the question is whether the particular irregularity affects the fairness of the trial. 6. The court commented that courts should discourage preliminary litigation designed merely to delay trials or circumvent section 35(5) of the Constitution, though courts' doors should never be completely closed to legitimate claims. 7. The court noted the importance of efficient case management and trial readiness certification to prevent endless interlocutory applications.

This judgment provides authoritative guidance on the interpretation of section 106(1)(h) of the CPA in the post-constitutional era. It confirms that 'title to prosecute' has a narrow technical meaning related to the prosecutor's legal standing and authority, not broader concerns about independence, impartiality or bias. The judgment establishes that challenges to a prosecutor's independence/impartiality must be pursued through alternative remedies (such as applications for permanent stay of prosecution or recusal applications), not through the special plea mechanism. The case affirms that the ultimate safeguard for an accused is the constitutional right to a fair trial assessed holistically at the end of trial proceedings. The judgment demonstrates the application of stare decisis and issue estoppel principles in criminal matters, preventing relitigation of issues previously decided. It provides important guidance on case management in complex, high-profile criminal trials, including the use of affidavit evidence to determine preliminary issues efficiently. The judgment emphasizes that fairness in criminal proceedings is not a 'one-way street' and requires balancing the rights of the accused against the public interest in prosecuting crime and the efficient administration of justice.