JUSTICE FOR PRESIDENT ZUMA- SA Natives Forum Lawsuit

                                                By: Paul M. Ngobeni

“Justice delayed is justice denied. Delay devalues judgments, creates anxiety in litigants, and results in loss or deterioration of the evidence upon which rights are determined… Delay signals a failure of justice and subjects the court system to public criticism and a loss of confidence in its fairness and utility as a public institution.” –ABA National Conference of State Trial Judges. Standards Relating to Court Delay Reduction. (Commentary to Sec. 2.50.) Chicago: American Bar Association, 1984, p. 5.

Introduction - What is the Lawsuit About?
The SA Natives Forum, has filed a court application against the NPA, the NPA Director, Minister of Justice, the President of South Africa, Public Protector and Parliament asking for the following orders:
1.1.    Declaring that the conduct of the NPA and NDPP Abrahams (taken in its totality) in relation to the prosecution of former President Mr. Zuma, is inconsistent with the Constitution, more particularly, section 35(3) of the Constitution (which guarantees right to fair trial without unreasonable delay).
1.2.    Declaring that the conduct of the NPA and Abrahams in relation to the prosecution of former President Mr. Zuma is inconsistent with the rights of everyone guaranteed in section 9(1) of the Constitution which provides that everyone “is equal before the law and has the right to equal protection and benefit of the law.”
1.3.    Declaring that, based on the finding and remedial actions ordered by the Public Protector (Advocate Mushwana) in 2004, the NPA and Abrahams have violated the constitutional rights of Mr. Zuma in sections 9, 10, 12 and 35(3),  of the Constitution. 
1.4.    Directing the NPA and Abrahams to comply with the findings of and the remedial action taken by the Joint Investigation Team, which included the Public Protector;
1.5.    Declaring that Parliament and the Executive have failed to fulfil their constitutional obligations as directed by the Public Protector.   
1.6.    Declaring that the various decisions and public pronouncements by the NPA, Abrahams and the other respondents on the prosecution of Mr. Zuma are inconsistent with the Constitution, more particularly sections 9,10 and 12(1). Such conduct must be declared to amount to an abuse of process and a failure by the NPA and NDPP Abrahams to prosecute in accordance with the provisions of section 179 of the Constitution read together with those of the National Prosecuting Authority Act 32 of 1998.
2.    The decision, acts or omissions by the NPA, NDPP and other respondents that caused then Acting NDPP Mpshe, to withdraw criminal charges against Mr Zuma must be declared to be inconsistent with the Constitution and the constitutional duties of the NPA and NDPP in that cumulatively, they resulted in the violation of Mr. Zuma’s rights in section 9, 10, 12 and 35 of the Constitution. 
3.    Cumulatively,  the decision, acts or omissions by the NPA, NDPP and other respondents in regard to the criminal prosecution or non-prosecution of Mr. Zuma be declared inconsistent with the Constitution (Sections 9, 12, 35 and 179), and to be a violation of Zuma’s rights enshrined in the Constitution. 
The Applicant asks that the Court must declare that the impugned decisions or acts and omissions reflect clear and widespread violations of the relevant provisions of the Constitution. Further, it asks for permanent stay of the proceedings. The Court has inherent power to stay proceedings without hearing the evidence on the merits because it is impossible in the circumstances of the Zuma case to give the defendant a fair trial.  The prosecution has consistently and over a fifteen (15) years period procrastinated, manipulated or misused its powers and the process of the court so as to deprive Mr. Zuma of a protection provided for by the law and has taken an unfair advantage of its seemingly unfettered discretion and powers.  The Applicant is firmly convinced that on the balance of probabilities Mr Zuma has been or will be, severely prejudiced in the preparation of his trial and conduct of his defence.  A fair trial is simply impossible.
Simply put, the Applicant wants the Court to order that the prosecution of the Mr. Zuma in relation to all pending charges be permanently stayed. The courts have an overriding duty to give effect to the constitutional rights of Mr. Zuma and to prevent the continued violation of his constitutional rights. This, the court may do, by relying on its inherent power to stay or stop a prosecution on the basis that to allow the prosecution to continue would amount to an abuse of the process of the court.  Accordingly, the Court must order that the prosecution of the Mr. Zuma in relation to all pending charges be permanently stayed on the basis of abuse of process and gross violations of Mr. Zuma’s constitutional rights as detailed herein.


Locus Standi- Does SA Natives Forum Have Legal Standing to Bring the Lawsuit? 

Answer: Absolutely. Section 38 of the Constitution allows for people acting in the public interest to enforce the Bill of Rights in court – it provides that citizens can approach the court where violations of their Constitutional rights are feared. It evinces an intention to ensure a prominent place for the Bill of Rights in the lives of all our citizens. This is an important departure from the common law position which required a “direct and substantial” interest in order to do so.  Ferreira v Levin no and others; Vryenhoek and others v Powell no and others 1996 (1) SA 984 (cc)


Did the NPA and Former NDPP Ngcuka violate Mr. Zuma’s Rights By Convening A Press Conference, Pronouncing There Was “A Prima Facie” Case Against Zuma and Thereby Maximizing Non-Trial Related Prejudice Suffered By Zuma?
Answer: Without question. Publicly naming a person as an un-indicted co-conspirator or a “guilty man walking” leaves the named person without an opportunity to rebut the accusation at a fair open trial, thereby transforming the NPA from an institution that protects the individual from the state to an institution that can destroy an individual’s reputation without an opportunity to confront the evidence against him. See, U.S. v. Briggs (514 F.2d 794 1975) which provides the most thorough critique of the practice. There a federal grand jury in Florida named three individuals as unindicted co-conspirators in a plot to violently disrupt the 1972 Republican convention. The Briggs court held that the grand jury exceeded its authority and violated the named individuals’ due process rights. It observed that “the courts have struck down with strong language efforts by grand juries to accuse persons of crime while affording them no forum in which to vindicate themselves.” What’s more, it cited with approval the following passage from a Florida Supreme Court decision:
        The medieval practice of subjecting a person suspected of crime to the rack and other forms of torture is universally condemned; and we see little difference in subjecting a person to the torture of public condemnation, loss of reputation, and blacklisting in their chosen profession, in the manner here attempted by the grand jury.
        The person so condemned is just as defenseless as the medieval prisoner and the victim of the lynch mob …
The Briggs court found that a person’s good name, reputation and ability to obtain employment “are substantial and legally cognizable interests entitled to constitutional protection against official governmental action that debases them.” Id. (citing Wisconsin v. Constantineau, 400 U.S. 433 (1971)). The Court continued that “a person’s good name, reputation, honor, or integrity” are protected and that “[i]t would be naive” not to find that official acts that negatively characterize an individual “will expose him to public embarrassment and ridicule.” Id. 797-98 (quoting Constantineau, 400 U.S. at 435-36). Furthermore, accusing one publicly of being a criminal is “a stigma, an official branding of a person, the imposition of a degrading and unsavory label.”4 Id. at 798 (quoting Constantineau, 400 U.S. at 437). In the context of Briggs, the Court found that the unindicted co-conspirators had a strong, cognizable interest in the:
    protect[ion of] their reputations ... against the opprobrium resulting from being publicly and officially charged by an investigatory body of high dignity with having committed serious crimes. In addition to being serious, the offenses charged were given wide notoriety and were peculiarly offensive. An alleged conspiracy to disrupt the national nominating convention of a major political party strikes at the core of democratic institutions. Id. at 799.
Furthermore, the Court found that in such cases where the reputation and dignity of a person or entity is impinged by the public naming as an unindicted co-conspirator, that person or entity deserves due process as “[a person] should not be subject to a quasi-official accusation of misconduct which he cannot answer in any authoritative forum.” Id. at 802.
Finally, relevant to Mr. Zuma’s case, the Court puts the public naming of the anti-war activists as unindicted co-conspirators in context. The Court explains that:
    [n]ine of the ten persons named in the indictment were active in the Vietnam Veterans Against the War, an anti-war group.... There is at least a strong suspicion that the stigmatization of appellants was part of an overall governmental tactic directed against disfavored persons and groups. Visiting opprobrium on persons by officially charging them with crimes while denying them a forum to vindicate their names, undertaken as extra-judicial punishment or to chill their expressions and associations, is not a governmental interest that we can accept or consider. It would circumvent the adversary process which is at the heart of our criminal justice system and of the relation between government and citizen under our constitutional system. It would be intolerable to our society.” Id. at 805 (emphasis added).
In In re Smith, 656 F.2d 1101 (5th Cir. 1981), the Fifth Circuit Appeals Court expanded the holding in Briggs beyond indictments. Smith was the head of an agency under investigation for a bribery conspiracy and his name appeared in the factual resumes filed in connection with the guilty pleas of the two defendants. Id. at 1101. During the plea hearing, the Assistant United States Attorney “read in open court and filed in the criminal case a factual resume prepared by her for the purposes of the plea hearing.... the resume... state[d] that [the defendant] had paid sums to other unnamed ... employees, but also specifically named [Smith].” Id. at 1102. Following the plea hearing, the media widely reported the story of the “bribery scandal, and, as was to be expected when any person in position of responsibility and power is implicated in such a scandal, the news media reported that, as a matter of public and official courtroom record, Mr. Smith had been paid bribe monies....” Id. at 1104. Smith filed motions in the criminal case seeking for the court to strike his name from the factual resumes. Id. The district court denied the motions, and the Fifth Circuit overturned the district court’s decision. Id. The Appeal Court found that the inclusion of the petitioner’s name in the factual resumes during the plea colloquy was “a violation of his liberty and property rights guaranteed by the Constitution” and that the motion to strike his name and seal the document should have been granted. Id. at 1107. In that case, The Fifth Circuit employed the balancing test under Briggs. The Court stated that:
    The case involves the struggle between society’s interests in bringing those guilty of violating the law to justice and an individual’s interest in preserving his personal reputation. Although our Constitution provides for both interests to exist, oftentimes the judiciary is called upon to balance those interests when a conflict arises between them. Today, after balancing the interests, we find the scales of constitutional liberty tip in favor of the individual. Id. at 1102.
Smith claimed “that the accusations of a criminal offence, by inclusion of his name in the factual resume, has so damaged his name, reputation and economic interests that the government’s actions have violated his liberty and property interests contrary to [the Fifth Amendment’s due process protection].” Id at 1105. The Fifth Circuit agreed - no legitimate governmental interest is served by an official public smear of an individual when that individual has not been provided a forum in which to vindicate his rights.
The Court continues:
    Certainly the purposes of Rule 11 were not advanced by the attack on the Petitioner’s good name.         Regardless of what criminal charges may have been contemplated by the Assistant United States Attorney against the Petitioner for the future, we completely fail to perceive how the interests of criminal justice were advanced at the time of the plea hearings by such an attack on the Petitioner’s character. The presumption of innocence, to which every criminal defendant is entitled, was forgotten by the Assistant United States Attorney in drafting and reading aloud in open court the factual resumes which implicated the Petitioner in criminal conduct without affording him a forum for vindication. Id. at 1106-07.
Therefore, the Court’s holding in In re Smith makes clear that a public smearing of a person’s reputation by the government without affording that person any chance to clear his name is a violation of his constitutional rights, no matter if it occurs in an indictment or in any other official government filing. Furthermore, In re Smith buttresses Briggs in averring that there can be no legitimate governmental interest in an official smear campaign.
The U.S. Department of Justice apparently is very explicit in this regard (and all US Prosecutors are bound by DOJ rules). According to the U.S. Attorneys’ Manual (9-11.130), public disclosure of unindicted co-conspirators should be avoided because “there is ordinarily ‘no legitimate governmental interest served’ by the government’s public allegation of wrongdoing by an uncharged party, and this is true ‘[r]egardless of what criminal charges may ... b[e] contemplated by the Assistant United States Attorney against the [third-party] for the future.’” U.S.A.M. 9-27.760. The guidelines then proceed to identify cases in which “[c]ourts have applied this reasoning to preclude the public identification of unindicted third- party wrongdoers in plea hearings, sentencing memoranda, and other government pleadings.” See Briggs, 513 F.2d 794; Finn v. Schiller, 72 F.3d 1182 (4th Cir. 1996); United States v. Anderson, 55 F.Supp.2d 1163 (D. Kan. 1999); United States v. Smith, 992 F. Supp. 743 (D.N.J. 1998). Finally, U.S.A.M. 9-27.760 states that “[i]n all but the unusual case, any legitimate governmental interest in referring to uncharged third-party wrongdoers can be advanced through means other than those condemned in this line of case.”

In the Zuma case, the NPA and NDPP did not remain sensitive to the privacy and reputation interests of Mr. Zuma who was then an uncharged third party in the Shaikh criminal matter. The NPA sought to undermine Mr. Zuma politically and did not strive to avoid unnecessary public references to wrongdoing by Mr. Zuma, then an uncharged third-party. They subjected Mr. Zuma to the torture of public condemnation, loss of reputation, and savage political attacks, which ultimately resulted in his dismissal from the position of Deputy President of the Republic.  Indeed, Mr. Zuma was just as defenseless as the medieval prisoner and the victim of the lynch mob.

Did the NPA and NDPP’s Pronouncement of a “ Prima Facie” case against Zuma While Declining to Prosecute Violate Any of Zuma’s Constitutional  Rights?
Answer: Absolutely and we highlight only the following Constitutional provisions:
A. Violation of Mr. Zuma`s Constitutional Right to Equality.
Section 9 of the Constitution provides that "everyone is equal before the law and has the right to equal protection and benefit of the law." This means that Zuma, regardless of his standing in the community, should be treated no better and no worse than similarly situated accused persons. Mr. Zuma, like every citizen has a constitutional right to the presumption of innocence.  Like every citizen Zuma has a constitutional right to a prosecution that is totally independent of political influence and which prosecutes fairly, consistently and without fear or favour to anyone. It is a matter of record that Zuma has never asked for any special favours from anyone. Mr. Zuma has always insisted on his right to equal treatment, has subjected himself to the authority of our courts at all levels and has always abided by the rulings of the courts.

It was unlawful for the NPA to publicly accuse Mr. Zuma of having committed crimes for which a “prima facie case” existed while at the same time refusing to charge him alongside Shabir Shaikh. Those public statements regarding a “prima facie” case reflect a pattern of prosecutorial misconduct in which inflammatory press releases, media interviews and false and misleading statements are often used to prejudice the rights of Mr. Zuma.  Shaikh was provided a forum in which the merits of his case could be ventilated while Mr. Zuma was denied similar rights.  The conviction of Shabir Shaikh was ultimately used to the detriment of Mr. Zuma – he was dismissed from his position as Deputy President and his position was given to the prosecutor’s wife all on the basis of accusations made in a trial Mr. Zuma was excluded from. Mr. Zuma lodged a complaint with the public protector on 30 October 2003. The Public Protector dutifully investigated the matter and subsequently issued a report in which it found that Ngcuka`s statements infringed on President Zuma`s constitutional right to equality and caused him to be improperly prejudiced. It is also noteworthy that during its investigations, the public protector experienced stone-wall tactics by the NPA and other difficulties ranging from prevarications, evasiveness and outright refusal to cooperate with the public protector. The said action by the NPA also violated President Zuma`s right to the presumption of innocence normally accorded all accused persons. As shown below, these violations were highlighted in the 2004 Public Protector’s report on Zuma and the subsequent separate judgments of Msimang J and Nicholson J. 

B. Violation of President Zuma`s Rights Under Sections 10, 12, and 14 of the Constitution

Section 10 of the constitution states that "everyone has inherent dignity and the right to have their dignity respected and protected." As the Public Protector`s Office has previously found the NPA has engaged in a pattern of violating President Zuma`s right to dignity. At the risk of repetition, during a press conference on August 23, 2003, Ngcuka, then NPA director issued a statement announcing that whilst "a prima facie case of corruption" existed against Mr. Zuma, the prosecuting authority was not convinced that it had sufficient evidence against him to secure a conviction. It was accordingly announced that a decision had been taken not to prosecute Mr. Zuma.  At the time Mr. Zuma was the deputy president of the Republic of South Africa and according to him a perception was created that he was guilty but that either he had covered his tracks too well or that he was too politically powerful to be prosecuted. The NPA decided for its own tactical reasons not to indict Zuma with Shaik in 2003 but Shaik`s trial was effectively a trial of Zuma by proxy in the court of public opinion. Then Deputy President Zuma was thus officially and publicly accused by a prosecutor of criminal wrongdoing amidst claims by the same prosecutor that he did not have a winnable case.

As shown in Briggs and Smith cases above, Courts around the world have recognised that the principle is violated if a statement of a public official concerning a person charged with a criminal offence reflects an opinion that he is guilty before he has been proved so according to law. It suffices, even in the absence of any formal finding, that there is some reasoning to suggest that the official regards the accused as guilty. In this regard the Court emphasises the importance of the choice of words by public officials in their statements before a person has been tried and found guilty of an offence. See, Allenet De Ribemont v. France, ECtHR judgment of 23 January 2005, para 35 and Daktaras v. Lithuania, ECtHR judgment of 10 October 2000, para 41. In addition, see the Briggs case referenced above. Ngcuka  invited the public to regard Zuma as the accused guilty man walking despite the fact that there were no criminal charges pending against Mr.t Zuma at that time.  The NPA perpetuated the culture of impunity because the NPA director was never censored or disciplined by anyone for his unconstitutional actions which were condemned by the Public Protector and the courts.  The NPA has used its powers and/or the court`s process improperly for official public smear of Mr. Zuma while at the same time repeatedly frustrating his right of access to court and denying him a forum in which to vindicate his rights. The NPA has subjected President Zuma to the torture of public condemnation and loss of reputation.

The Honourable Justice Msimang recognised the severe prejudice and violation of the right to dignity already suffered by President Zuma. In his judgement striking the first prosecution case against Zuma off the roll he stated as follows: "We cannot imagine any case in recent times which has triggered as much negative publicity in the media as the present one. However, as it was pointed out in the Sanderson case, the problem with this kind of prejudice is that it closely resembles the kind of punishment that ought only to be imposed on convicted persons and is therefore inimical to the right to be presumed to be innocent enshrined in the Constitution. Much as such prejudice is inevitable in our criminal justice system, the accused`s right to a trial within a reasonable time demands that the tension between the presumption of innocence and the publicity of trial be mitigated." State v. Zuma (Msimang Judgment).

Section 10 should be read together with Sections 12 and 14 of the constitution. Section 12 provides as follows: "Everyone has the right to freedom and security of the person, which includes the right- not to be deprived of freedom arbitrarily or without just cause; not to be tortured in any way; and not to be treated or punished in a cruel, inhuman or degrading way." Security of the person is not restricted to physical integrity; rather, it encompasses protection against "overlong subjection to the vexations and vicissitudes of a pending criminal accusation" These include stigmatization of the accused, loss of privacy, stress and anxiety resulting from a multitude of factors, including possible disruption of family, social life and work, legal costs, uncertainty as to the outcome and sanction.  As Msimang J stated, Zuma suffered the kind of prejudice that “…closely resembles the kind of punishment that ought only to be imposed on convicted persons and is therefore inimical to the right to be presumed to be innocent enshrined in the Constitution.” He was subject to the torture of public condemnation and treated in a cruel, inhuman and degrading way.

Section 14 states that "Everyone has the right to privacy." Respect for a person`s reputation, like respect for dignity of the person, is a value that underlies the Constitution. In this case, there is no question that the NPA`s grandstanding, press releases, media leaks and other statements were a calculated prosecution strategy to deny Mr. Zuma a fair trial and to violate his rights under Section 12 and 14 of the Constitution. The unrelenting media coverage, prejudicial delay in prosecuting him, the stigma attached to the charges of corruption against him, court decisions which purport to find him guilty of wrongdoing even though he was never given the opportunity to defend himself in a fair public trial, outrageous media leaks orchestrated by or at least emanating from the NPA`s office have all caused severe prejudice to President Zuma. These have all obviously impacted his life and point to a violation of his rights under Sections 12 and 14 of the constitution.

Undeniably, the human dignity of a person is closely tied to a person`s reputation and privacy interests. Indeed, much of the harm which has been suffered by Mr. Zuma in this case has been the damage which has been done to his reputation. The good reputation of the individual represents and reflects the innate dignity of the individual, a concept which underlies all the rights enumerated in the Bill of Rights. It follows that the protection of the good reputation of an individual is of fundamental importance to our democratic society. The egregiousness of the violation in Zuma`s case was that the NPA announced the existence of so-called prima facie evidence of corruption against Zuma and then declared its intention to use Shaik`s trial to embarrass Zuma, to put him on trial by proxy in Squire`s court and in the court of public opinion. When the Shaik case was over then President Mbeki fired Zuma and gave his job to the prosecutor’s wife.  Almost immediately, the NPA then brought charges against President Zuma which it failed to prosecute with diligence. As if to emphasise the NPA`s abuse of the court process to persecute Zuma, the NPA engaged in such incompetent and dilatory litigation tactics which caused the Honourable Justice Msimang to condemn such tactics which he said "caused the case to limp from one disaster to another." He threw out the case.

The NPA then took an inordinately long time to commence another prosecution of President Zuma. In the meantime it embarked on media leaks and prejudicial press releases which were geared to provoke public condemnation of President Zuma. When President Zuma prevailed in the elections for the Presidency of the ANC in Polokwane, the NPA charged president Zuma with additional charges. That case too was dismissed by Nicholson J because of the NPA`s incompetence. It was reinstated by the SCA on appeal only for the charges to be withdrawn by Adv. Mpshe on alleged unlawful and irrational grounds.


Did the Public Protector Issue a Binding Ruling In Zuma’s Favour and Is That Material to the Current Criminal Prosecution?
Answer: Absolutely -Yes. The Concourt judgment in Economic Freedom Fighters v Speaker of the National Assembly and Others; Democratic Alliance v Speaker of the National Assembly and Others [2016] ZACC 11, instructs that the Public Protector’s unreviewed findings and recommendations are of binding legal effect unless set aside on review. Accordingly, the lawsuit claims the failure by the NPA, Minister of Justice, Parliament and the President to comply with the remedial action taken against the NPA and NDPP, by the Public Protector in his report of 28 May 2004, is inconsistent with section 83(b) of the Constitution read with sections 181(3) and 182(1)(c) of the Constitution and is invalid.
On 23 August 2003, the National Director of Public Prosecutions issued a press statement stating that although there was a prima facie case of corruption against the Deputy President, he would not be prosecuted, as the prospects of success were “not strong enough”. The criminal investigation against then Deputy President related to allegations of his improper involvement in the Strategic Defence Procurement of the South African National Defence Force (“arms deal”). Subsequently, on 30 October 2003, then Deputy President Zuma lodged a complaint with the Public Protector. He complained about the manner in which the criminal investigation against him had been conducted; the leaking to the media by the NPA of confidential information relating to the criminal investigation; the failure by the NPA to inform him of the criminal investigation against him; the public statement by the National Director of Public Prosecutions that there was a prima facie case of corruption against him; and the apparent continuation of the criminal investigation after it had been decided not to prosecute him.
Section 8(2)(b) of the Public Protector Act, Act No 23 of 1994, provides that the Public Protector shall, at any time, submit a report to the National Assembly on the findings of a particular investigation, inter alia if the matter requires the urgent attention of, or an intervention by, the National Assembly. The Public Protector, in terms of this statutory provision and section 182(1)(b) of the Constitution, 1996, which empowers the Public Protector to report on any conduct investigated by that Office, on 28 May 2004 submitted his special report on the investigation into the complaint by the Deputy President.
The Public Protector made a finding that the press statement by the National Director of Public Prosecutions on 23 August 2003 unjustifiably infringed upon Mr Zuma’s constitutional right to human dignity and caused him to be improperly prejudiced, and that the press statement was unfair and improper. The report slammed Ngcuka, then NPA head, for damaging the dignity of deputy president Zuma during the course of an investigation into allegations of corruption related to an arms deal.
In the report, Public Protector Mushwana has implored parliament to urgently consider his recommendations, which includes among others a call for Ngcuka to account for infringing on Zuma's constitutional right to dignity and violating prosecutions policy. Mushwana also recommended that Ngcuka and the prosecutions authority be held accountable for failing to co-operate in the investigation of the complaint by Zuma. He found that Ngcuka violated the prosecution guidelines and the prosecution policy, when he stated there was a prima facie case of corruption against Zuma without disclosing his defence. He thus, treated the deputy president improperly and unfairly.  "It (Ngcuka's statement) was inappropriate and unnecessary," says Mushwana. "Nothing in the prosecution authority would justify a public statement regarding a person's apparent but not provable guilt." Mushwana has found that Zuma was improperly prejudiced by Ngcuka's statement that there was a prima facie case of corruption with regard to allegations that Zuma solicited a bribe in the arms deal. Ngcuka's statement was among the concerns that triggered Zuma's complaint to the public protector alleging the head of the prosecutions authority had abused his powers and had set him up for trial by media instead of by a court of law.  Interestingly Mushwana states in the report it is for the court and not Ngcuka to determine whether or not a prima facie case had been established or not.  Mushwana observed: " Prosecutors cannot perform the functions of a judge or magistrate." "Under the circumstances, a finding that Mr Zuma's right to human dignity was unjustifiably infringed upon by the statement by the national director (Ngcuka) that there was prima facie case of corruption against Zuma, and that he has therefore been improperly prejudiced, is unavoidable."
In the report Mushwana details how Ngcuka and Maduna consistently thwarted his efforts to find information that would enable him to probe Zuma's claims of power abuse. Following several requests by Mushwana's to Ngcuka and Justice Minister Maduna to assist with information, the two did not respond. Mushwana then sought President Thabo Mbeki's intervention.  He too proved useless and nothing materialised.  This “do nothing” approach by the three officials raises a disturbing picture that there was a tacit agreement amongst them for Ngcuka to conduct a public smear of Zuma, to damage his political career and ultimately cause his removal from government. What that ultimately happened Mbeki fired Zuma and appointed the prosecutor, Ngcuka’s wife to take over Zuma’s position.
A naming and shaming punishment is one in which a convicted criminal is subjected to embarrassment as part of a sentence. The NPA and Ngcuka forgot that prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice and that guilt is decided upon the basis of sufficient evidence. Ngcuka should have been aware that press statements by prosecutors - particularly while criminal investigations and trials are ongoing - pose several significant dangers. He knew that Zuma’s case was one where intense media interests in the criminal proceedings involving allegations of corruption and bribery against a sitting Deputy President of the ruling party would inevitably follow. He knew that a prosecutor`s extrajudicial comments can jeopardise a defendant`s rights to a fair trial by implanting suggestions of guilt in the minds of the public before the charges can be fully and fairly exposed in a court of law, thus undercutting the presumption of innocence to which all defendants are entitled.
The current NDPP Abrahams has refused to learn valuable lessons from his fumbling predecessors. Acting under political pressure and driven by his need to curry favours with the new President, the current NDPP Shawn Abrahams has refused to revisit the Public Protector report and has recklessly chosen to proceed with a case where irrefutable evidence of prosecutorial misconduct looms large. The NDPP’s abuse of power and violation of Zuma’s rights coupled with clear evidence of political meddling as captured in the Spy Tapes case shows that the impartiality and requisite independence of the NPA have been severely compromised to a point where the constitutional requirement of Section 179 of the Constitution and the NPA Act can no longer be met.  A previous pronouncement about a ‘prima facie” or “strong case” by Ngcuka, Mpshe and successors is meaningless and cannot be used in circumstances where prosecutorial misconduct and violation of Zuma’s rights was and continues to be present.
We also note that Parliament had the opportunity to act on the previous Public Protector`s findings in Zuma`s favour - it failed and refused to act thereby denying Zuma equal protection of the laws by our legislative branch. President Mbeki as then head of the Executive branch also refused to assist the Public Protector during the investigation.

Can Judge Msimang’s Judgment In Zuma’s Favour Be Relied Upon to Establish the Abuse of Process Claim?
Answer: Yes.   We do not have to reinvent the wheel in terms of evidence of unlawful prosecutorial missteps in the Zuma prosecution.  In brief, Mr. Zuma’s corruption case was struck off the roll by Msimang J of the Pietermaritzburg High Court after Judge Msimang made scathing remarks and said the state’s case against Zuma “went from one disaster to another” and had failed to follow proper procedure. “There were clear guidelines which should have informed their decision to proceed. They ignored those guidelines at their own peril,” Msimang J said. “This is the chickens coming home to roost.” Msimang J said Mr. Zuma had to be treated the same as any other person, irrespective of his position in the country. “His standing in the community will not alter his position in the eyes of the law.” Msimang said he had needed to take the “spirit of the Constitution” into account when making a judgment.  He pointed out that the prosecution’s case depended on the outcome of appeals against controversial search-and-seizure raids, when documents were seized from Zuma’s lawyers and from Zuma.  Msimang said Zuma had suffered social prejudice which “closely resembles punishment that should only be handed to a convicted person”.  He said the state’s decision to prosecute was “anchored” on unsound principles. The state’s case “limped from one disaster to another” and it should have investigated further before charging Zuma. He accused the state of failing to take into account the legal challenges to the search-and-seizure raids. The state was “taking chances that the trial court would come to their rescue to admit such evidence”. Msimang said the state did not “need to take chances”.  Msimang strengthens the claim that the state’s case against Zuma caused undue prejudice, that Zuma’s case was characterised by prosecutorial incompetence and inordinate delays that infringed his rights to a fair trial. Interestingly, the irrefutable narrative about prosecutorial misconduct or incompetence started in 2003 and continued through 2009 when Mpshe dropped the charges.  The High Court’s adverse findings serves to further underscore Mr. Zuma’s claim that he has been a victim of prosecutorial abuse, incompetence and misconduct.                                                                                                                                                             
What About Utilising Judge Nicholson’s Judgment In Favour Of Mr. Zuma and Getting It Right This Time?
The Nicholson judgment speaks for itself and despite it being overturned on appeal, subsequent events including the spy tapes revelations prove that a strong case for abuse of process and political meddling can now be successfully made. Remember that in overturning Nicholson’s judgment,  Judge Harms at the SCA made scathing remarks about Judge Nicholson and said that political meddling was not an issue that had to be determined in the case. "Nevertheless a substantial part of his judgment dealt with this question. He changed the rules of the game, he took his eyes off the ball."  Harms said Nicholson's finding that he could not exclude the possibility of political meddling in the decision to re-charge Zuma was "incomprehensible", that he erred in his judgment and that his findings were "unwarranted". He said Nicholson had overstepped the limits of his duty as a judge. His findings ultimately led to the axing of former president Thabo Mbeki. "The [findings] involving Dr [Penuell] Maduna, Mr Mbeki and all the other members of cabinet ... were not based on any evidence or allegations. They were instead part of the judge's own conspiracy theory and not one advanced by Mr Zuma," said Harms.
What happens now that political meddling is now an issue that has to be determined in the case where there is direct evidence and allegations of political manipulations? The circumstances have now changed radically  especially with revelations from the “Spy Tapes”– Mr. Zuma knows precisely what he must do to prove political meddling in his case. The Nicholson court made a number of findings in order to buttress its conclusion of executive interference aimed at the political ouster of Mr Zuma. Nicholson J pointed out that the decision to fire Mr Zuma from the deputy presidency of the country, following the conviction of Mr Shaik, was, though not illegal, unfair and unjust when one considered that Mr Zuma had not been given an opportunity to defend himself. Mbeki can now be called to explain or justify the decisions he took to refuse to cooperate with the Public Protector’s investigation and to deny his request for assistance in dealing with obstructionist acts of Ngcuka and Maduna, Mbeki’s acquiescence in the unlawful conduct of Ngcuka and Maduna, his decision to fire Zuma and to replace him with the prosecutor’s wife and Mbeki’s implicit instructions to the NPA that it must file criminal charges against Zuma and his subsequent suspension of Adv. Pikoli all cry out for intense scrutiny.
Suffice it only to state that with the subsequent revelations of the Spy Tapes case, political meddling is now an issue that is to be determined and strongly supported by the evidence.  The current NDPP can and should be encouraged to take a decision that the NDPP office is inherently conflicted – it was found guilty of misconduct and constitutional violations by the Public Protector, it was subsequently found wanting by Judges Msimang and Nicholson and Abrahams’ conduct has been the subject of numerous adverse court judgments and judicial comments. Mpshe’s decision which was overturned has contributed to the very excessive delays Judge Msimang condemned.  Under these circumstances, there is lack of appearance of impartiality on the part of the entire NPA office, the prejudice caused to Zuma through these excessive delays is irreversible and the public’s trust in the impartiality and competence of the NPA has been permanently eroded. Zuma can and must use  the Nicholson’s judgment as a script – he must now affirmatively assert that there was political meddling in his case from the very onset starting in 2003 and continuing to 2009 when Mpshe withdrew the charges. 
I am aware that the apartheid Judge Harms made a grossly erroneous statement of the law when he found that: "[a] prosecution is not wrongful merely because it is brought for an improper purpose. It will only be wrongful if, in addition, reasonable and probable grounds for prosecuting are absent ... [this] can only be determined once criminal proceedings have been concluded ... the worst motive does not render an otherwise legal arrest illegal" - NDPP v Zuma para 37.  That is nonsense - a prosecution that selects an accused based on vindictiveness or invidious discrimination based on race or political activities was permissible under apartheid but is now unlawful under our constitutional democracy. Moreover, the Concourt has expressly ruled in Bothma v Els & Others 2010 (2) SA 622 (CC), paragraph 75 that the motives and conduct of the prosecution could be highly relevant in a case. The Bothma court expressly ruled that improper motives, such as a complainant having a long delay in initiating proceedings for the purpose of blackmail or the making up of a State misdemeanour purely to impede the competitor’s career could impact so severely on the integrity of the administration of justice as to call for a permanent stay of prosecution.
Selective prosecution and malicious prosecution are recognised legal principles under our law.  Moreover, every criminal defendant in our country has a constitutional right to a prosecutor who is unbiased, neutral and/or disinterested. See, Smyth v Ushewokunze & another 1998 (2) BCLR 170 (ZS) where the court condemned a prosecutor who had "involved himself in a personal crusade" against the accused and lacked the objectivity, detachment and impartiality necessary to ensure that the State`s case was presented fairly.  The Court assessed the evidence which revealed that the prosecutor`s behaviour had fallen far short of the customary standards of fairness and detachment demanded of a prosecutor, which required him to conduct himself with due regard to the basic rights and dignity of the accused. Most important, the court stated that the accused`s right to "a fair hearing by an independent and impartial court" embodied a constitutional value of extreme importance and had to be interpreted so as to include within its ambit not only the impartiality of the decision-making body but also the absolute impartiality of the prosecutor. `Impartial court` had to be interpreted so as to embrace a requirement that the prosecution exhibit fairness and impartiality in its treatment of a person charged with a criminal offence.
Accordingly, the prosecutor who displayed vindictive and biased attitude to the accused during investigation and remand proceedings was interdicted from taking any further part in preparation or presentation at trial of charges against accused. There is an obligation on the NPA to avoid even the appearance of partiality or conflict of interest on the part of the prosecutor. That should preclude disregard for the rule of law and political grandstanding.  All previous prosecutors involved in Zuma’s case have embarked on a deliberate course of conduct in pursuit of media celebrity status all in flagrant disregard for the code of ethics prohibiting prosecutors from making public statements or issuing press releases that have a substantial likelihood of prejudicing a defendant`s right to a fair trial. At all times a prosecutor has a duty of remaining neutral and refraining from prejudicing a criminal proceeding. He must not attempt to mislead the people or sway public opinion, by making comments to the public or otherwise. Such requirements are necessary because any pretrial publicity caused by a prosecutor that attacks the accused can be a severe form of punishment without due process of law.  Judge Nicholson`s admonition to the NPA was very clear - the NPA`s prosecution policy, as well as the code and directives "emphasise very clearly that statements should not be made to the media before a prosecution is instituted.”  That was despicably violated in Zuma’s case.
What is even more outrageous is the fact that the Public Protector`s findings in 2004 clearly put everyone on notice that the NPA`s conduct of the prosecution was in violation of President Zuma`s rights. But the NPA`s actions continued unabated. The Hefer Commission heard testimony that Bulelani Ngcuka used a confidential meeting with black editors for the "vitriolic character assassination" of several subjects of Scorpions investigations, including then Deputy President Jacob Zuma and Shaik.
One of the witnesses, Mona, told the commission the following:  Ngcuka said "he would wash his hands off Zuma and leave him in the court of public opinion". Ngcuka allegedly said that Zuma had landed in trouble because he "surrounded himself with Indians". Mona sent copies of his notes about the meeting with Ngcuka to the chief justice, the public protector and Justice Minister Penuell Maduna. In a similar vein, the Khampepe Commission of Inquiry also found evidence that the myriad of public complaints relating to the leaking of information by the DSO were well-founded. It held that such unlawful action "that causes prejudice or embarrassment to those who are the subject matter of the investigations." It found evidence of abuse in the manner in which the DSO publicises its work to the media "FBI style" meaning "that the DSO conducts its operations as though it were a law unto itself." It found such "conduct to be out of kilter with our constitution, reprehensible, unprofessional and corroding the public`s confidence in the law enforcement agencies."
Did The NPA Violate Zuma’ Rights To A Speedy Trial in Regard to Section 35(3)
Answer: Under the Constitution of South Africa 1996 section 35(3)(d), any person charged with an offence in our country, is entitled to be tried without undue delay. This requirement known as the right to a speedy trial has been interpreted to mean the right to a trial that produces a final judgment without undue delay and, also a sentence without undue delay. The term speedy trial is not only the time from which the person is accused of an offence to the commencement of the trial, but also includes the duration of the trial itself to the conclusion by sentence. A speedy trial means a trial conducted - in accordance with the prevailing rules and procedures - without unreasonable or undue delay or within a statutory period. The State is at all times and in all cases scrutinised, in order to ensure that the accused persons are not subject to unreasonable delays in the prosecution of the case against them. State prosecutors and judicial officers are constitutionally bound to prevent infringement of the right to a speedy trial.
Our courts have spoken on the speedy trial requirements on many occasions. In Sanderson v Attorney-General, Eastern Cape 1998 (2) SA 38 (CC)case, the Concourt held that a substantively fair trial, as in S v Zuma and Others,1995 (2) SA 642 (CC) would include a provision that minimised non-trial related prejudice suffered by an accused. Although the accused is presumed innocent until proven guilty, the accused does not escape the stigma of the proceedings brought against him. In determining the question of undue or unreasonable delay in criminal proceedings, a court has to take into account all the relevant factors: these were listed in Feedmill Development (PTY) LTD and Another v Attorney-General of KwaZulu-Natal, to be: (1) the length of the delay; (2) the difficulties encountered in the investigation of the case for trial; (3) the evidence-gathering process; (4) the preparation of the case for trial; (5) and any substantial prejudice suffered or is likely to suffer by the accused as a result of the delay in the commencement of the trial.
In Sanderson, under section 25 of the Interim Constitution, the court outlined the factors to kept in mind during the enquiry of what constitutes “unreasonable delay” (1) nature of the prejudice,(2) nature of the case,(3) systematic delays and (4) the public’s interest in a fair trial.
The above listed factors weigh overwhelmingly in Zuma’s favour. The length of the delay is about 15 years, there were no difficulties encountered in the investigation of the case for trial as the NPA has always proclaimed loudly that it had a strong case on the merits and was at all times ready to proceed with its case.  The blame for the NPA’s failure to proceed with expedition cannot be blamed on Zuma.     The issue of substantial prejudice suffered or is likely to suffer by the accused as a result of the delay in the commencement of the trial also weighs in Zuma’s favour.  The Public Protector’s pronouncements, Judges Msimang and Nicholson’s pronouncements and court judgments regarding Acting NDPP Mpshe’s withdrawal of the case on allegedly unlawful and irrational grounds all provide strong evidentiary material undergirding Zuma’s claim that he suffered extraordinary and substantial prejudice as a result of NPA’s misconduct.
There is something extraordinary and unique in the undue delay experienced in Mr. Zuma’s case.  Section 35 presupposes that the clock starts ticking after a person has been formally charged with a crime.  But what happens when the NPA publicly pronounces that it has a “prima facie” criminal case against the person but deliberately refuses to bring formal charges against that person for almost three(3) years?  As detailed here, the non-trial related prejudice to the person so subject to official smear and vilification is severe and constitutes prosecutorial misconduct.
Further, Zuma’s case presents a perfect opportunity for the Concourt to address the critical questions of (a) whether it is constitutionally permissible to stigmatise an individual by announcing that he would not be charged criminally but that there is a “prima facie case” against him, (b) whether the three years period during which Zuma was subjected to torture of public condemnation and attacks must be considered in determining the substantial non-trial related prejudice suffered by the accused; (c) whether the final and binding finding by the Public Protector that Zuma suffered substantial prejudice  and the accompanying remedial measures can be ignored by the NPA or another court in the current criminal proceedings, (e) whether cumulatively, the many missteps by successive NPA officials from Ngcuka to Mpshe which delayed the matter for about 15 years are sufficient to constitute “excessive delay” warranting a permanent stay, and (f) whether Section 6 of the Criminal Procedures Act as applied, unconstitutionally promotes a culture of complacency towards delay.  Traditionally, in criminal prosecutions in South Africa, the State is dominus litis (master of its case) in preferring charges as well as in conducting the trial. Once a court is seized of a case, the court has the statutory power to regulate its procedure, and may grant or refuse requests for remand by the State as well as the defence. The court can, in the exercise of its discretion, refuse further requests by the defence for remand and order the case to proceed. Once an accused has pleaded, the court can also compel the State to proceed with its case, or consider its case closed if the prosecution is not in a position to proceed on the merits. However, if an accused has not pleaded, and a request for a remand by the State is not granted, the prosecution may simply withdraw the charge and enrol it again at any time thereafter. Obviously, this practice creates an incentive for the NPA prosecutors to proceed in a dilatory fashion with the full knowledge that it has limitless opportunity to withdraw the charge and enrol it again at any time thereafter even in the face of severe judicial criticism such as that of Msimang J.
Another issue that must be determined by the Court is applicability of Section 342 A of the Criminal Procedure Act 51 of 1977 which makes provision for the control of delayed trials to ensure the right to a speedy trial as guaranteed in the Bill of Rights. The court in which criminal proceedings are taking place, must investigate the delay in the completion of proceedings which may according to the court, amount to an unreasonable delay. The investigation must include the circumstances that may cause substantial prejudice to the prosecution, to the accused or his or her legal advisor, the State or a witness.  Section 342A (2) (a) of the CPA32 sets out the factors which need to be taken into account when making a determination on whether there has been an infringement on the right to a speedy trial, owing to undue delays. The factors include the following;
(a) the duration of the delay;
(b) the reasons advanced for the delay;
(c) whether any person can be blamed for the delay;
(d) the effect of the delay on the personal circumstances of the accused and witnesses;
(e) the seriousness, extent and complexity of the charge or charges against the accused;
(f) actual or potential prejudice caused to the State or defence by the delay, including weakening of the quality of evidence, the possible death or disappearance or non- availability of witnesses, the loss of evidence, problems regarding the gathering of evidence and considerations of cost;
(g) the effect of the delay on the administration of justice;
(h) the adverse effect on the interests of the public or the victims in the event of the prosecution being stopped or discontinued; and
(i) any other factor which in the opinion of the court ought to be taken into account.
Nothing in the Act prevents a court from taking a holistic and historical view of the delays in a particular case to determine whether the delay in the Zuma case amounts to an unreasonable delay.
In McCarthy v Additional Magistrate, Johannesburg 2000 (2) SACR 542 (SCA) at paragraphs 204J-205F Farlam JA commented on the time lapse and the grounds relied for on the alleged trial-related prejudice by stating that the lapse of 13 years since the alleged conspiracy advocates very strongly that fairness of the trial will be materially adversely affected, in at least the following respects: the applicant‟s memory of events, the tracking down of such witnesses for the defence as may survive, the willingness to testify, the recollection of those witnesses and locating real evidence.Id. In Bothma v Els & Others 2010 (2) SA 622 (CC), paragraph 75 the court ruled that the conduct of the prosecution could be highly relevant, particularly if it has a direct involvement in the disappearance of crucial evidence. Other factors considered important in Bothma are loss of faculties to make a proper defence could be another factor, the loss of evidence through death of witnesses or disappearance of documents,  etc. Most importantly, the Bothma court expressly ruled that improper motives, such as a complainant having a long delay in initiating proceedings for the purpose of blackmail or the making up of a State misdemeanour purely to impede the competitor’s career could impact so severely on the integrity of the administration of justice as to call for a stay of prosecution.
Please note that Bothma is a Concourt case and therefore constitutes a binding precedent that must be followed by all our courts.  White professors, racist NGOs and their black puppets have ignored the binding Concourt ruling and have been chanting Judge Harms’ mantra that “improper motives” are irrelevant in a criminal case. The political machinations, orchestrated political attacks which emanated from the NPA are proper subjects for investigation and judgment by our courts.  Almost universally, it is accepted by courts around the world that the longer the time that elapses after the charge, the more the presumption that the accused person would be prejudiced thereby.
Unfortunately, the dominant discourse in the Zuma matter is the ideologically driven and racist narrative which presupposes that the Constitution exists only to protect whites and other minorities from oppression and domination by black Africans.   The piece of apartheid legislation, Section 342 A of the Criminal Procedure Act 51 of 1977 has existed on the statute books for more than 40 years and is routinely invoked to protect some favoured defendants.  Unfortunately, the NGOs and other anti-Zuma forces including those within the ranks of the ANC have adopted the attitude that delays in the case of criminal trials involving black Africans are constitutionally irrelevant!
International Law and The NPA Violation of  Zuma’ Rights To A Speedy Trial.
The Constitution’s provisions of section 35(3) (d), "the right to a speedy trial", can best be understood in the context of international law and foreign law in South African criminal procedure. Section 39 of the Constitution reads as follow: When interpreting the Bill of Rights, a court, tribunal or forum- (a) must promote the values that underlie an open and democratic society based on human dignity, equality and freedom;  (b) must consider international law; (c) and may consider foreign law. 
Clearly, section 39 of the Constitution makes it peremptory for South African courts to consider international law and no judge may ignore that willy-nilly. Further, Section 233 of the constitution instructs the courts’  about the proper role of international law in South African national law under the Constitution. It states: ”When interpreting any legislation, every court must prefer any reasonable interpretation of the legislation that is consistent with international law over any alternative interpretation that is inconsistent with international law.”
It is very important to remember that The right to a trial within a reasonable time frame has been guaranteed in various international law instruments. South Africa has signed and ratified various international treaties and covenants, enacting them into national law through Parliament.  The provisions of international and regional instruments such as the International Covenant on Civil and Political Rights article 9(3) which state that "anyone arrested or detained on a criminal charge shall be entitled to trial within a reasonable time or to be released” are legally binding on our courts and judicial officers.  So are the provisions of the he African Charter on Human and Peoples Rights13 article 7(1) (d) which stipulates that "every individual shall have the right to have a trial within a reasonable time by an impartial court or tribunal.”
Decisions of foreign courts are instructive in regard to the Zuma case.  Our Bill of Rights and constitution are modelled along the Canadian Charter of Rights and Freedoms.  Section 11(b) of the Charter states: ‘Any person charged with an offence has the right to be tried within reasonable time.’ Canadian court judgments are routinely cited and relied upon by our own Concourt judges. A few precedent -setting judgments are mentioned here to illustrate how the Zuma case would be dealt with by courts in major democracies.  Just like our courts, Canadian Supreme Court has emphasised that inordinate delays are unlawful and where appropriate, may lead to the granting of permanent stay of prosecution. As then Madam Justice McLachlin observed in R v. Morin [1992] 1 SCR 771:
    'When trials are delayed, justice may be denied. It is obvious that witnesses can forget, or even witnesses can disappear. The quality of evidence may deteriorate. Accused persons may find their liberty and security limited much longer than necessary or justifiable. Such delays are of consequence not only to the accused, but may affect the public interest in the prompt and fair administration of justice.”

In R. v. Askov,[1990] 2 SCR 1199 the Supreme Court of Canada established the basic principles relating to unjustified delay in prosecution of criminal cases. The appellants were charged with conspiracy to commit extortion. The trial took place almost three years after the original charges were laid. The Supreme Court found the delay excessive and unreasonable and ordered a stay of proceedings. As a result of this precedent, almost 50,000 other criminal charges in Ontario were dismissed because of “unreasonable delay.” The primary causes of the delay were the institutional inadequacies and overburdened system. The Supreme Court of Canada decided that, while allocation of resources was a political decision, systemic delay could trigger the protection of speedy trial. In its view, it was the duty of the government to provide proper and adequate resources, facilities and manpower for speedy trials. Finding ample solutions to systemic delays is the responsibility of the government, because it is vital for both the accused and the community at large. In the opinion of the Court, the delay of twenty four months between committal and trial, despite arising in one of the busiest and most congested judicial districts in Canada, was not acceptable. The government’s submission of lack of funds was rejected, because it cannot be used as a defence where an individual’s freedom is concerned. The Supreme Court added:
    As well, the societal interest in ensuring that these accused be brought to trial within a reasonable time has been grossly offended and denigrated. Indeed the delay is of such an inordinate length that public confidence in the administration of justice must be shaken. Justice so delayed is an affront to the individual, to the community and to the very administration of justice. The lack of institutional facilities cannot in this case be accepted as a basis for justifying the delay.
The Court laid down the following principles,
    (a)  The longer the delay, the more difficult it should be for a court to excuse it. Very lengthy         delays may be such that they cannot be justified for any reason.
    (b)  Where the delay is attributable to the action of the State (including police or             prosecution) it will weigh in favour of the accused. Complex cases which require longer time for preparation, a greater expenditure of resources by police or prosecution, and the longer use of institutional facilities will justify delays longer than those acceptable in simple cases.
    (c)  Delays occasioned by inadequate resources must weigh against the State. Thus, the         burden of justifying inadequate resources resulting in systemic delays will always fall upon the     State.
    (d)  Where delays are attributable to the accused, certain actions of the accused, for example     justified request of adjournment, can be considered as justifiable. If the actions of the accused were taken in order to delay the trial, that delay goes against the accused.
    (e)  If the accused waives his/her rights by consenting to or concurring in a delay, provided the consent is free and unequivocal, the delay is excused. An example of a waiver is the consent by the defence lawyer to a fixed date for trial.
    (f)  There is a general, and in the case of very long delays an often virtually irrebuttable,         presumption of prejudice to the accused resulting from the passage of time. Where the State can demonstrate that there was no prejudice to the accused flowing from a delay, such proof may serve to ignore the delay. It is also open to the accused to call evidence to demonstrate actual prejudice to strengthen his/her position that he/she has been prejudiced as a result of the delay.
Applying these principles, the Court concluded that the delay of fourteen months between committal and trial was such that the defendant’s right of being tried within a reasonable time had been infringed.  In the 2016 case of R. v. Jordan, the Supreme Court tightened the screws further, dismissed the analysis developed in the Askov case and blasted the “culture of complacency towards delay” after a simple dial-a-dope drug prosecution dragged on for over four years. As a result, the court set ceilings beyond which a delay is presumptively unreasonable, if the total delay exceeds 30 months in superior courts and 18 months in provincial courts. Under the Jordan framework, once the presumptive ceiling is exceeded, the burden is on the Crown to rebut the presumption of unreasonableness on the basis of exceptional circumstances. If the Crown cannot do so, a stay of proceedings will follow. Exceptional circumstances lie outside the Crown’s control in that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) they cannot reasonably be remedied. The seriousness of the offence, chronic institutional delay, or lack of prejudice suffered by the accused cannot be used to justify delays after the presumptive ceiling is breached. Below the presumptive ceiling, the burden is on the defence to show that the delay is unreasonable.
Canadian courts have firmly held that stays of proceedings (which may appear to be an extreme measure) are the appropriate means by which Canadian courts have chosen to protect this important constitutional right to speedy trials. In its reasons set out in R. v. Rahey, [1987] 1 S.C.R. 588 the Supreme Court held that a stay of proceedings was the minimal remedy for unreasonable delay. The reason for this was because of a loss of jurisdiction:
    If an accused has the constitutional right to be tried within a reasonable time, he has the right not to be tried beyond that point in time, and no court has jurisdiction to try him or order that he be tried in         violation of that right. After the passage of an unreasonable period of time, no trial, not even the             fairest possible trial, is permissible.Id. at para.48.
In the Askov majority decision, Justice Cory of the Supreme Court mentions how “most unfortunate and regrettable” the consequence of having to stay proceedings is, and adds that: “There can be no doubt that it would be in the best interest of society to proceed with the trial of those who are charged with posing such a serious threat to the community. Yet, that trial can only be undertaken if the Charter right to trial within a reasonable time has not been infringed. In this case that right has been grievously infringed and the sad result is that a stay of proceedings must be entered. To conclude otherwise would render meaningless a right enshrined in the Charter as the supreme law of the land.”
Canadian Courts have flexed their muscles to stay proceedings for even very serious crimes. In R. v. Williamson,2016 SCC 28 charges for sexual offences against a minor were stayed by the Supreme Court. The total delay in this case, between the laying of charges to the end of trial, was 34 months (excluding defence delay). The Supreme Court concluded that “while the crimes committed by W are very serious, the balance weighs in favour of his interests in a trial within a reasonable time, over the societal interest in a trial on the merits” (para. 30). In 2012, in R. v. Picard, 2016 ONSC 7061 the accused had been charged with first degree murder. In 2016, when the case was being scheduled to go to trial, Justice Julianne Parfett of the Ontario Superior Court of Justice instead ordered a stay of proceedings after finding the accused’s constitutional right to trial within a reasonable time had been breached. In arriving at her decision, Justice Parfett applied the recently released judgment of the Supreme Court of Canada in R. v. Jordan. She concluded her judgment in Picard by acknowledging the unsatisfactory outcome for the victim’s family and the “hollow victory” for the accused person. She then explained her reasons for ordering the stay:
    [T]he thread that runs through the present case is the culture of complacency that the         Supreme Court condemned in Jordan.
    Everyone, not just the Crown, was content with trying this matter within the time for delay         that has become the norm in [the City of] Ottawa....
    In the present case, the justice system has failed this accused and the public. Consequently, a         stay of proceedings will be entered.
    Id. paras. 80-82
Principles that can be gleaned from the Canadian approach are that it can reasonably be inferred that a long and unreasonable delay prejudices the accused. Where a court finds that the delay is substantially longer than can be justified on any acceptable basis, it would be difficult to conclude that the accused’s fundamental rights have not been breached. The individual right of speedy trial of accused persons is a fundamental principle, which should be given proper deliberation in relation to other considerations. It should be recognised that the society in general has an interest in speedy trials, and public confidence in the administration of justice is enhanced when trials take place sooner rather than later.  As the Supreme Court ruled in R. v. Rahey, [1987] 1 S.C.R. 588 a stay of proceedings was the minimal remedy for unreasonable delay. If an accused has the constitutional right to be tried within a reasonable time, he has the right not to be tried beyond that point in time, and no court has jurisdiction to try him or order that he be tried in violation of that right. After the passage of an unreasonable period of time, no trial, not even the fairest possible trial, is permissible.Id. at para.48. 
The pivotal question is whether our South African courts will rise to the occasion and boldly protect and defend the constitutional right of an accused to be tried within a reasonable time, and state that he has the right not to be tried beyond that point in time.  It is self-evident that most courts in major democracies would never even think of allowing the deeply flawed Zuma prosecution to proceed under circumstances where his rights have been grievously infringed.
What the Law Says About the Zuma Costs Issue and His Rights To Have State Pay The Legal Costs?
  Contrary to the racist propagandists’ narrative against Zuma, there is a long-standing rule that public officers should, when acting within the scope of their duties and functions, be entitled to protection from the State in relation to legal proceedings taken against them. This protection ensures that if public officers are involved in proceedings they can rely on the State to provide them with an indemnity. In terms of sect. 3(3) of the State Attorney Act 56 of 1957, the state attorney has a discretion to act for a litigant in a matter where the government is a party to proceedings or where it is not a party but has an interest in a matter, or otherwise where the government is concerned in such matter. The Act’s predecessor, the Government Attorney Act 25 of 1925, was enacted during British colonial rule and contained a similar provision, however this discretion lay with the Justice Minister.
The State Attorney’s website is crystal clear about the functions of the State Attorneys which are: “The drafting and managing of contracts on behalf of the State,” “[t]he handling of criminal and civil litigation cases instituted against State officials and committed by means of acts or omissions while executing their official duties,” “[t]he hand[l]ing of applications form [sic] qualifying personnel for admission as advocates for the High Court,” “[t]he handling of applications for admission as practicing attorney [sic],” and “the regulation and overseeing of the conduct of private attorneys operating under the State Attorney Act.”  See, State Attorney Services, Dep’t: Just. & Const. Dev., http://www.justice.gov.za/branches/stateattorney. html. Critics have ignored this established practice in order to argue that Zuma unlawfully benefitted from the state agreement to shoulder the costs of his criminal defence.  But we know from countless examples that the likes of Wouter Basson, the apartheid chemical war killer, Magnus Malan, the apartheid Minister of Defence and many policemen who appeared before the TRC had their legal costs shouldered by the state.
We know that the state attorney routinely represents individual employees in both criminal and civil matters. This applies not only where employees are sued with the state for actions allegedly committed by them where the state is vicariously liable. It happens even in cases where individual employees are sued for acts arising out of their employment where the state is not a party. These cases are ones in which the government clearly has an interest. For instance, the state attorney has even represented employees that have sued for defamation where the alleged defamatory statement related to performance of the functions of the employee (see Potgieter v Ellis and Another 1948 (3) SA 1183 (D)).  The DOJ engages private attorneys to work on state civil litigation matters in two situations: (1) when the State Attorney is legally precluded by a conflict of interest from acting and (2) when there exists no expertise within the State Attorney Office for matters that require specialization. Dep’t of Justice & Constitutional Dev., Nat’l Assembly, Question for Written Reply: Parliamentary Question No. 147, http://www.justice.gov.za/pqa/pqa2013/2013-147.pdf .
As the State Attoney’s website attests, the state attorney also acts for employees who have been charged with certain criminal offences, ranging from ordinary criminal matters such as assault or reckless and negligent driving to severe cases involving murder.  There are also cases involving the representation of a person in the governmental interest where the Justice Minister has unfettered discretion to permit such representation.
In Zuma’s case, the acts on the basis of which it is alleged that the former president committed criminal offences took place during his tenure as a government official both at provincial and later at national level.  We must remember that in terms of s 34 of the Constitution, everyone has a right to a fair hearing before a court or other tribunal and every organ of state is bound to comply with this right. As part of the state, every department must respect, promote and fulfil the rights in the Bill of Rights, including the right to a fair trial. Without financial support from the State and given the plethora of constitutional violations detailed herein, Zuma would have been hindered in every possible way. Fairness in the litigation and legal skirmishes on an even keel would be impossible.

Conclusion
The mobilisation of the judiciary, parliament, the executive branch of government and Chapter 9 institutions in an anti-Zuma crusade must never be underestimated by those who truly care for our constitutional democracy.  If the plethora of constitutional violations detailed here could be visited upon a liberation war hero, a high-ranking government official and former President Zuma, can we confidently say that the rights of ordinary folks in the street are not severely imperilled?  The case is not simply about Zuma (who is now an ex-President jettisoned by the ANC, a party he served with his sweat and blood) but is about the fundamental rights of all South Africans as guaranteed in the Constitution.
 If the Public Protector’s orders against Zuma in Nkandla matter are binding then those orders in his favour must also be binding.  If the rights of white citizens are respected then Mr. Zuma’s rights must be given proper respect as well.  In Msimang J’s words, the prejudice suffered by Mr Zuma caused by the negative publicity engendered by his prosecution resembled: “... the kind of punishment that ought only to be imposed on convicted persons and [the prejudice was] therefore inimical to the right to be presumed innocent enshrined in the Constitution.” All litigants, irrespective of their status, are regarded as having equal status before the courts but Mr. Zuma has consistently been denied that equality of treatment.