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[2026] ZAKZPHC 54
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S v Zuma and Another (Leave to Appeal) (CCD30/2018) [2026] ZAKZPHC 54 (14 May 2026)
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FLYNOTES:
CRIMINAL
– Trial –
Stalingrad
litigation strategy –
Prosecution
of former president and corporate accused arising from arms deal
marked by decades of delay and extensive pre
trial
litigation – State applied for order that trial proceed
irrespective of interlocutory applications – Court
held
higher courts had already found deliberate Stalingrad strategy
implemented – Points in limine rejected, inherent
power
under Constitution, section 173 invoked – Interests of
justice demanded commencement of trial without further
delay –
Trial directed to proceed, registrar to set dates.
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case no: CCD30/2018
In
the matter between:
THE
STATE
and
JACOB
GEDLEYIHLEKISA ZUMA
FIRST ACCUSED
THALES
SOUTH AFRICA (PTY) LTD
SECOND ACCUSED
(Registration No.:
1996/006180/07)
ORDER
The
following order is granted:
1.
It is directed that the trial is to proceed
irrespective of any
interlocutory applications, either by the State or the defence.
2.
The parties are directed to approach the registrar
for suitable trial
dates.
JUDGMENT
Delivered
on. 14 May 2026
Chili
J:
[1]
Simultaneously with the applications for leave to appeal against the
judgment and order of this
court dismissing Mr Zuma’s and
Thales South Africa (Pty) Ltd’s applications to quash the
charges in accordance with
s 6 of the Criminal Procedure Act 51 of
1977 (the CPA), the State, represented by Mr
Trengove SC
,
brought its own application, seeking the court’s intervention
in what it termed a Stalingrad tactic that has prevented the
commencement of the trial in this matter for decades.
[2]
In the main, the State sought an order in the following terms:
‘
1.
That the hearing of evidence and the merits of the state’s case
against the accused
[persons] must commence on the soonest possible
date determined by the Registrar after consultation with the parties’
legal
representatives.
2.
That it be declared that the dismissal order will not be suspended by
any appeal
or application for leave to appeal against it.’
[3]
In the alternative, the State sought an order that it be declared, in
terms of s 18 of the
Superior Courts Act 10 of 2013 (the SC
Act), that the dismissal order will not be suspended by any appeal or
application for leave
to appeal against it.
[4]
The State’s case is supported by the founding and replying
affidavits of Mr Downer. Attached
to the founding affidavit is a
document, annexure ‘WJD1’, setting out in detail every
pre-trial and related litigation,
including representations made to
the Public Protector on 30 October 2003, through to 2018, when Mr
Zuma and Thales South Africa
(Pty) Ltd (Thales) made their first
appearance in court under the present case number CCD30/2018, and
beyond that. Given the nature
of the application, I consider it
pertinent to mention certain pre-trial applications.
[5]
On 15 November 2018, Mr Zuma and Thales launched permanent stay
applications, which subsequently
served before the full court per
Mnguni, Steyn and Poyo Dlwati JJ. These applications were dismissed
on 11 October 2019.
[1]
All
attempts at overturning the full court’s decision failed.
[6]
On 21 May 2021, Mr Zuma entered a special plea, seeking the removal
of Mr Downer as the public
prosecutor. The matter was argued before
Koen J on 21 and 22 September 2021. On 26 October 2021, Koen J
dismissed the special plea
and directed the trial to proceed on 11
April 2022.
[2]
That order was
followed by a series of unsuccessful applications for leave to
appeal, including a reconsideration application to
the President of
the Supreme Court of Appeal and two applications for leave to appeal
to the Constitutional Court.
[7]
On 5 September 2022, Mr Zuma launched private prosecution proceedings
of Mr Downer and Ms Maughan.
On 21 and 27 September 2022, Ms Maughan
and Mr Downer, respectively, approached the court on an urgent basis
seeking orders interdicting
their prosecution by Mr Zuma. The
applications (jointly considered) subsequently served before Kruger,
Henriques and Masipa JJ.
On 7 June 2023, the full court granted an
interdict in favour of both Ms Maughan and Mr Downer.
[3]
Parallel applications followed thereafter: Mr Zuma’s
application for leave to appeal the granting of the interdict and Ms
Maughan’s and Mr Downer’s applications for the
enforcement of an interdict despite applications for leave to appeal,
in accordance with s 18(3) of the SC Act. The full court granted the
enforcement order and later dismissed Mr Zuma’s application
for
leave to appeal. An appeal against the enforcement order was
subsequently dismissed by the Supreme Court of Appeal.
[4]
A subsequent application for leave to appeal to the Constitutional
Court failed. An application for leave to appeal against the
interdict was dismissed by the Supreme Court of Appeal. So was the
application for reconsideration by the President of the Supreme
Court
of Appeal.
[8]
On 9 April 2024, this court removed the private prosecution
proceedings of Mr Downer and Ms Maughan
from the roll.
[9]
Two applications then served before this court: an application by Mr
Zuma for the removal of Mr
Downer as the public prosecutor (second
application) and the application by Thales, supported by Mr Zuma, for
the quashing of charges
in terms of s 6 of the CPA. Both
applications were dismissed and so were subsequent applications for
leave to appeal. The
application for leave to appeal in respect of
the removal of Mr Downer as a public prosecutor has since been
dismissed by the Supreme
Court of Appeal per Zondi DP and Mocumie JA.
I am not certain as to what the position is regarding an application
for leave to
appeal against this court’s refusal to quash the
charges against Thales and Mr Zuma.
[10]
Given the nature of the application, I do not consider it necessary
to traverse the content of annexure ‘WJD2’,
captioned
‘History of Stalingrad Tactic’.
[11]
In reply, Mr Zuma and Thales relied on answering affidavits deposed
to by their respective attorneys,
Messrs Thusini and Dunston-Smith.
Mr Zuma raised three points in limine. Firstly, he submitted that the
Stalingrad defence on which
the present application is anchored
should be disregarded, it having been decided and rejected both by
this court and Koen J. He
further submitted that it is not open to
this court to revisit these binding decisions, unless they are shown
to have been clearly
wrong. Secondly, he submitted that s 18 of
the SC Act does not find application in the present case, in that the
appeals are
sought in terms of s 316 of the CPA, and not s 17 of the
SC Act. Thirdly, he submitted that the application is ‘incomplete
and therefore superfluous’ in that, inasmuch as it relates to
both accused persons, the content of the founding affidavit
makes it
plain that the allegations of a Stalingrad defence strategy are
directed only at accused no 1, Mr Zuma. I deal with these
points in
limine in turn.
[12]
The contention that this court and Koen J made a factual finding that
Mr Zuma has not implemented a Stalingrad
litigation strategy is
without merit. No such finding was made either by this court or Koen
J. Neither the judgment of this court
nor Koen J’s judgment
contains a factual finding that Mr Zuma has not implemented a
Stalingrad litigation strategy. All this
court did in its judgment
was to observe that there had been a lengthy delay in the prosecution
of Mr Zuma and Thales. The mere
fact that it decided not to attribute
blame to anyone cannot be said to amount to a factual finding that Mr
Zuma has not implemented
a Stalingrad litigation strategy. In his
judgment, Koen J made an observation that:
[5]
‘
Mr
Zuma has challenged many decisions adverse to him in the past,
usually invoking the entire appeal process to the highest court
in
the land, and in many instances has been unsuccessful which resulted
in inevitable delays. He is on record through previous
counsel
representing him, that he will continue exercising all rights
available to him.’
Koen
J proceeded:
‘…
but
the exercise of those rights as much as they may be viewed with
suspicion and distrust from certain quoters as resulting only
in
delays which only favour him, do not per se amount to an abuse of
those rights. A finding of mala fides will require more and
clear
proof by the state which I cannot make on the allegations in the
present papers alone.’
[13]
There is nothing in the observation made by Koen J that suggests that
he found, as a fact, that Mr Zuma has
not implemented a Stalingrad
litigation strategy. Instead, he appears to have made a conscious
decision not to make a finding of
mala fides based on the information
at his disposal.
[14]
What is clear though, is that the full court of this division
(Kruger, Henriques and Masipa JJ) on 7 June
2023 (the interdict
against the private prosecution proceedings) and 3 August 2023 (the
enforcement order) and the Supreme Courts
of Appeal on 13 October
2023, found as a fact that Mr Zuma had implemented a Stalingrad
litigation strategy. This point in limine
must therefore fail.
[15]
The second point in limine that the State only focused its attention
on Mr Zuma and not Thales is without
merit. The State, in its
founding affidavit, has accused both Mr Zuma and Thales of having
implemented a Stalingrad strategy, albeit
to a lesser extent in
respect of Thales.
[6]
Again,
this point in limine must fail.
[16]
Regarding the third point in limine, the State only relied on s 18
of the SC Act as a default position.
Its case does not hinge on s 18.
In actual fact, it was argued on behalf of the State that s 18
does not apply in the
present proceedings. The State’s
application is premised on interlocutory applications brought in
criminal proceedings, which
are precluded by the definition of appeal
under s 1 of the SC Act, which provides:
‘“
appeal” in Chapter
5, does not include an appeal in a matter regulated in terms of the
Criminal Procedure Act, 1977
(Act No. 51 of 1977), or in terms of any
other criminal procedural law.’
The
position taken by the State was that if it were found that s 18 does
apply, then the State would rely on s 18(2) which
provides:
‘
Subject
to subsection (3), unless the court under exceptional
circumstances orders otherwise, the operation and execution of
a
decision that is an interlocutory order not having the effect of a
final judgment, which is the subject of an application for
leave to
appeal or of an appeal, is not suspended pending the decision of the
application or appeal.’
The
application brought by Thales, supported by Mr Zuma, for the quashing
of charges is no doubt interlocutory in nature. That settles
the
points raised in limine. I now turn to the merits of the State’s
case.
[17]
It was submitted on behalf of the State that the application is not
intended to curtail Thales’ and
Mr Zuma’s right to bring
whatever application they wish to bring to court. It is indeed
correct that the court has no authority
or power to do that. Section
35(3)
(o)
of the Constitution grants an accused person the
right of appeal to or review by a higher court. That right is also
regulated by
s 316 of the CPA, which describes the timing and the
manner in which the right enshrined in s 35(3)
(o)
is to be
exercised.
[18]
What this court has been called upon to do is to exercise its
inherent power under s 173 of the Constitution
to protect and
regulate its own process, and to develop the common law, taking into
account the interests of justice. There has,
no doubt, been an
inordinate delay in the prosecution of Mr Zuma and Thales. It seems
to me that, without this court’s intervention,
there is a
likelihood of grave injustice or the administration of justice being
brought into disrepute.
[19]
Mr
Roux
argued that the danger in
granting the relief sought by the State is that it is final in
nature. If the Supreme Court of Appeal
were to find, so he argued,
that Thales’ right to a fair trial will be violated by the
continued prosecution, then that will
be the end of the trial against
Thales. The question that follows therefore, so the argument goes, is
whether it is in the interests
of justice to disregard the effect of
the relief sought and carry on with the trial. Regarding
interlocutory applications brought
in criminal cases, Makgoka JA in
Luphondo
v S
stated
the following:
[7]
‘
In
Wahlhaus
v Additional Magistrate, Johannesburg
(
Wahlhaus
),
[8]
t
his
Court enunciated the following principles in this regard: by virtue
of its inherent power to restrain illegalities in the lower
courts,
appellate courts may, in a proper case, grant relief - by way of
review, interdict, or mandamus - against the
decision of a
lower court given before conviction.
This
power must be exercised sparingly, depending on the circumstances of
a given case
.
The court will intervene only in rare cases where grave injustice
might otherwise result or where justice might not be attained
by
other means.
In
general, however, it will hesitate to intervene
,
especially having regard to the effect of such a procedure upon the
continuity of proceedings in the court below, and to the fact
that
redress by means of review or appeal will ordinarily be available.’
(My emphasis and footnote omitted.)
Ogilvie
Thompson JA in
Wahlhaus
proceeded to say:
[9]
‘…
the prejudice, inherent
in an accused's being obliged to proceed to trial, and possible
conviction, in a magistrate's court
before he is accorded
an opportunity of testing in the Supreme Court the correctness of
the magistrate's decision overruling
a preliminary, and
perhaps fundamental, contention raised by the accused, does not
per
se
necessarily
justify the Supreme Court in granting relief before conviction…’.
[20]
Wahlhaus
was
later applied and affirmed in
Ismail
and Others v Additional Magistrate, Wynberg and Another.
[10]
The principle set out in the two pre-constitution judgments of
Wahlhaus
and
Ismail
was
recently affirmed by the Supreme Court of Appeal in
Mathebula
v The State and Another
[11]
and by the Constitutional Court in
Director
of Public Prosecutions, Johannesburg and Another v Schultz and
Others; Director of Public Prosecutions, Bloemfontein v
Cholota
.
[12]
In both cases, the courts considered applications to halt criminal
proceedings. In
Cholota,
the
Constitutional Court drew an important distinction between two
categories of the State’s conduct when considering applications
to halt proceedings. Makgoka JA, in
Luphondo
,
[13]
describes these categories as follows:
‘
The
first category concerns cases in which the criminal prosecution is
preceded and tainted by illegal and egregious State conduct.
The
second concerns cases where unlawfulness or irregularity arises from
a bona fide error in the process. Criminal proceedings
will be halted
only in the former category because it would amount to “an
affront to the public conscience” or “would
be contrary
to the public interest in the integrity of the criminal justice
system” for a criminal trial to proceed
in such
circumstances.’
[21]
The Supreme Court of Appeal in
Luphondo
[14]
stated that the Constitutional Court in
Cholota
‘
emphasised the
need to strike an appropriate balance between upholding the rule of
law and combating impunity’. As aforesaid,
a factual finding
has been made, several times, not only by the full court of this
division and the Gauteng Division,
[15]
but also by the Supreme Court of Appeal, that Mr Zuma is implementing
Stalingrad defence tactics to delay the commencement of the
trial.
That finding stands until it is set aside by a court of competent
jurisdiction.
[16]
In the words
of Wallis JA in
Moyo
and Another v Minister of Justice and Constitutional Development and
Others
:
[17]
‘
The
term “Stalingrad defence” has become a term of art in the
armoury of criminal defence lawyers. By allowing criminal
trials to
be postponed pending approaches to the civil courts, justice is
delayed and the speedy trials for which the Constitution provides
do not take place. I need hardly add that this is of particular
benefit to those who are well resourced and able to secure
the
services of the best lawyers.’
[22]
In my view, the interests of justice demand that an order be made
directing the commencement of the trial,
regardless of the order
dismissing Thales’ and Mr Zuma’s applications for leave
to appeal this court’s dismissal
of their applications to have
charges against them quashed. Without this court’s
intervention, it is my view that there is
a likelihood of grave
injustice or the administration of justice being brought into
disrepute. It is not only the interests of
Mr Zuma and Thales that
the court has to take into account when considering the State’s
application, but also the interests
of the society.
[18]
A court has an obligation to guarantee public confidence in the
judicial authority and the administration of justice. This court
owes
the public a duty to facilitate the expeditious commencement and
management of the criminal trial.
[23]
The prosecution of a crime is a matter of some constitutional
importance.
[19]
Failure by the
court to intervene in circumstances where it has sufficiently been
established that the strategy implemented by
the defence is designed
to delay the commencement of the trial will no doubt compromise the
integrity of the court and the administration
of justice. Concerns
are likely to arise among reasonable members of the public if the
trial is halted without Mr Zuma and Thales
facing the charges
levelled against them. I am unable to point to any cognisable harm or
grave injustice that might result if the
trial proceeds, regardless
of pending interlocutory applications. Mr Zuma and Thales are not
without redress. Their right of appeal
is protected under s 316
of the CPA read with s 35(3)(
o
)
of the Constitution.
[24]
For the above reasons I make the following order:
1.
It is directed that the trial is to proceed
irrespective of any
interlocutory applications, either by the State or the defence.
2.
The parties are directed to approach the Registrar
for suitable trial
dates.
CHILI J
[1]
S v
Zuma and Another and a related matter
2020
(2) BCLR 153 (KZD).
[2]
S v
Zuma and Another
[2022]
1 All SA 533 (KZP).
[3]
Maughan
v Zuma (Campaign for Free Expression and others as amici curiae) and
a related matter
[2023]
3 All SA 484 (KZP)
[4]
Zuma v
Downer and Another
[2023]
ZASCA 132; [2023] 4 All SA 644 (SCA).
[5]
Koen J’s judgment in respect of an application for
postponement, h
anded
down on 11 April 2022.
[6]
See
the State’s allegation in paras 19-21 and 34, at pages 14-18
and 21-22 of the record.
[7]
Luphondo
v S
[2026]
ZASCA 24
(
Luphondo
)
para 91.
[8]
Wahlhaus
and Others v Additional Magistrate, Johannesburg and Another
1959
(3) SA 113
(A) (
Wahlhaus
)
at 119H-120C.
[9]
Wahlhaus
at
120C-E.
[10]
Ismail
and Others v Additional Magistrate, Wynberg and Another
1963 (1) SA 1
(A)
(
Ismail
).
[11]
Mathebula
v The State and Another
[2025]
ZASCA 189
;
2026 (1) SACR 337
(SCA).
[12]
Director
of Public Prosecutions, Johannesburg and Another v Schultz and
Others; Director of Public Prosecutions, Bloemfontein
v Cholota
[2026] ZACC 3
;
2026 (3)
BCLR 175
(CC) (
Cholota
).
[13]
Luphondo
para
96.
[14]
Ibid.
[15]
Democratic
Alliance v President of the Republic of South Africa and others and
a related matter
[2019]
1 All SA 681 (GP).
[16]
See
Dengetenge
Holdings (Pty) Ltd v Southern Sphere Mining and Development Company
Limited and Others
[2013]
ZASCA 5
;
[2013] 2 All SA 251
(SCA) para 17.
[17]
Moyo
and Another v Minister of Justice and Constitutional Development and
Others
[2018]
ZASCA 100
;
2018 (2) SACR 313
(SCA) para 169.
[18]
Bothma
v Els And Others
[2009]
ZACC 27
;
2010 (2) SA 622
(CC) para 40.
[19]
S
v Basson
[2005]
ZACC 10
;
2007 (1) SACR 566
(CC) para 144.