IN  THE  HIGH  COURT  OF  SOUTH  AFRICA NATAL  PROVINCIAL  DIVISION

Cases 8652/08 and CC273/07

In the matter between:

JACOB GEDLEYIHLEKISA ZUMA                                                                                      Applicant

and

THE NDPP                                                                                                                   Respondent

In re:

THE STATE

and

JACOB GEDLEYIHLEKISA ZUMA                                                                               Accused No. 1

THINT HOLDING (SOUTHERN AFRICA) (PTY) LIMITED                                              Accused No. 2

THINT (PTY) LIMITED                                                                                              Accused No. 3

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APPLICANT'S AFFIDAVIT

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1.

I, the undersigned,

MICHAEL ANDREW THOMAS HULLEY

do hereby make oath and state:

2.

I am the attorney of record of the Respondent in this application for leave for Appeal, Mr Zuma.

3.

I believe the matters deposed to hereinafter to be true and correct and necessary to place before the Court in order for it to form part of the Record.

4.

Subsequent to the Court's judgment being handed down the then President Mbeki launched an application to the Constitutional Court for the expungement of certain findings and statements in the judgment.  Whilst I simplify, this application of the President was, inter alia, premised on these statements relating to his part in the alleged meddling in the prosecution process by Government officials being unnecessary comments by the Court and improper, given that he was not a party.  Mr Zuma has taken issue with this application and I deposed to an affidavit dealing with the issue of "unnecessary" findings.

5.

The NDPP's grounds of appeal also make mention of this aspect.  I have dealt with this issue in the application to the Constitutional Court as follows. I repeat this because I understand from Counsel that there is broad agreement that what I said from paragraph 83 onwards is correct albeit clearly not the entire discussion.

6.

I quote the relevant extract from paragraphs 81 to 86:

            "81.

The S179(5) proceedings were launched and the Prosecution brought an application to strike out the averments of political interference despite the content of paragraph 163 that the truth of the averments is not wherein their main relevance lay, and persisted in this application.  This was what was argued as well in respect of the main issues - there was no need to go any further for the existence of the allegations of conspiracy could hardly have been denied.  That was until the Prosecution sought to preclude reliance on this aspect by seeking in their substantive application to strike out these allegations as vexatious, scandalous and irrelevant, and doggedly clinging to that stance.  The Court's proper adjudication of that application is what led to the statements concerning the Applicant which he complains about herein.

82.

It is also extremely important that the issue whether Judge Nicholson went outside his mandate in dealing fully with these averments, be placed in perspective.

83.

The Judge had adjourned a dispute which arose between the parties as to the manner of continuation of the criminal proceedings in the event of a judgment adverse to Mr Zuma in the S179 application, to Friday in the event of the parties being unable to come to an agreement.  The legal representatives of the NPA and Mr Zuma then came to a written agreement obviating the need for an argument in Court.  They approached the Judge in Chambers to inform him accordingly and request him to make the agreement an Order of the Court by Consent.  As is often customary, only Counsel went to see the Judge, Mr Zuma represented by Advocate KJ Kemp SC and Advocate A Gabriel, and the Prosecution by Advocate Downer SC and Advocate Steynberg (all these Counsel appeared amongst others at the S179 application). 

84.

The Judge made the Consent Order and a discussion about certain issues regarding the S179 application regarding the venue, press coverage etc. followed.  The Judge also indicated some issues (not the applications to strike out) which were of concern to him, some of which were resolved, and it was agreed that should he require further argument on an issue, he would ask both sets of Counsel to provide additional submissions.  The Judge also enquired that since Senior Counsel who addressed him (Advocates Trengrove and Kemp) dealt with the striking out applications in a very cursory manner in oral argument (which is correct) and were seemingly content to allow these to melt into the background, what he is to make of these - to adopt the same approach or to fully canvass them.  The response from Mr Zuma's side was that they would be quite content with a low key approach.  The State's response was that these were very serious matters, the averments of political interference etc. were harmful to the Prosecution and that the Court has to deal with the issues.  Mr Zuma's representatives then stated that the First Respondent's averments and arguments are on record and the Court must then decide the matter.  In short, Counsel agreed settlement between them of these applications was not possible. The learned Judge then in response said that he has no choice but to thoroughly go into these matters and decide the applications.  This was the gist of the report made to me by Counsel immediately after the meeting.

85.

In this context the full investigation of the findings and the reasonings of the learned Judge in respect of the Prosecution's application to strike out, were not unnecessary - these were required from him.  I further point out that Mr Zuma's Counsel of course reported back to me as the instructing attorney what was discussed pertaining to the case - whilst I and they, have always respected confidential interchanges, the above issues were not of that nature and not intended as such by any party, and the NPA has indeed already referred to what transpired in Chambers in their application for leave to appeal.

86.

The above is the recollection of Counsel and indeed my own (based on their report) of what transpired in Chambers between the Judge and the respective Counsel.  Whilst confident of our recollection there is an important facet and qualification.  There are very clear customs and principles which govern such interchanges in practice;  these are designed to maintain the dignity of the Judiciary and the integrity of the judicial process which rely, inter alia, on the usefulness of such discussions between the representatives and the Bench.  Thus while we are confident that what is conveyed above correctly reflects what was said, the recollection of the Judge for obvious reasons, is invariably accepted as the correct version of what transpired.  The Judge will most likely record his recollection in the application for leave to appeal and the First Respondent will accept and respect that recordal."

7.

Counsel for Mr Zuma has informed me that Counsel for the NDPP did say during the discussion that a rebuke (presumably for Mr Zuma and his representatives) and an adverse cost order may well meet their concerns.  This was of course neither accepted or acceptable to Mr Zuma and his representatives there said as much.  Indeed the discussion was an animated one.  The applications in respect of striking out thus stood and the Judge indicated that he would have to deal with these.  It was thus reported to me by Counsel that the Judge would indeed rule on the strike out applications.

8.

I further point out that at no stage thereafter did the State approach me and suggest that the strike out application be settled.  The strike out application of the State and Mr Zuma's counter application thus stood and I expected these to be resolved in the Judgment.

                                                                        9.

This was in any event where the matter stood in the actual hearing as well where the NDPP's Counsel in answer stated:

"M'Lord, there's lastly the question of costs.  We agree that it is not necessary to consider and decide the application to strike out, because the defence made nothing of the material to which we objected.  We do submit, however, that the fact that nothing is made of that material, illustrates and highlights our contention that the allegations were scurrilous and irrelevant to the causes of action raised by the defence, raised by the accused.  Those allegations are very serious allegations and they are raised again and again, apparently for public consumption, because they have no bearing on the causes of action and they are not relied upon when the causes of action are argued.  So that we do not ask - we do not suggest that it is necessary for the Court to determine the application to strike out, but we do submit that the Court should firstly award the State not only the costs of the main application, but also the costs of the application to strike out.  And, M'Lord, we submit that the objectionable material and their inclusion in this application for the - I don't know how often it's been done before, but in every application these allegations get repeated whether relevant or not, they deserve review and we suggest that the Court should, with respect rebuke the applicant for including his application quite unnecessarily and apparently for ulterior purpose, the serious allegations often based on no evidence at all.  Thank you M'Lord."

(my underlining).

10.

In response Mr Zuma's Counsel briefly touched on this and stuck to the contentions in the heads: "M'Lord, my learned friend has mentioned some hurt feelings about some certain things that were said, M'Lord, M'Lord we say that those things are germane, we tried to establish why they were - why we say they're germane in the heads, we will not travel that road again. There have also been things said on the other side which we look upon less than kindly, but there is no point in having a squabble about this - that in this court, M'Lord."

11.

Once this was followed by the discussion in Chambers, the applications simply had to be decided.

12.

Other aspects of the application for leave to appeal will be addressed in oral argument.

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DEPONENT

I HEREBY CERTIFY  that the deponent has acknowledged that he/she knows and understands the contents of this affidavit which was signed and sworn to before me at                          on this the              day of                2008, the provisions of the Regulations contained in Government Gazette Notice R35 dated 14 March 1980 having been duly complied with.

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COMMISSIONER OF OATHS

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