Zuma repeats attack on Downer
The former president is again seeking the state prosecutor’s removal from the arms deal trial, in doing so reviving the old claims of leaked information to the media
Former president Jacob Zuma’s latest bid to have state prosecutor Billy Downer removed from his arms deal corruption case relies on arguments that have been dismissed by the country’s courts several times over, the state argues in papers opposing his application.
Set down to be heard from Thursday, the application comes more than two years after the start of the arms trial, in which he denies charges that have haunted him for almost two decades. And it marks another delay in a matter that was postponed last year while he attempted to pursue criminal charges against Downer and journalist Karyn Maughan in a private prosecution.
That was set aside by the Pietermaritzburg high court as an abuse of process in June, and Zuma was subsequently denied leave to appeal both the judgment and an order granted to Downer and Maughan by the high court enforcing the ruling pending the outcome of his appeal against the judgment.
In denying leave to appeal, the supreme court of appeal (SCA) concurred with the high court that the private prosecution was void because it was instituted with ulterior motives. It said the appeal was in itself an abuse of process and part of the “Stalingrad” litigation strategy Zuma has pursued for some 15 years to delay the arms deal trial.
Zuma has vowed to pursue the appeal all the way to the constitutional court.
He signalled his intention to apply for Downer’s removal after he launched the private prosecution, on the basis that Downer was not fit to lead the state’s case while he faced criminal charges for breaching the National Prosecuting Authority Act.
It was Zuma’s submission that Downer had leaked a letter from a military doctor to Maughan and in so doing flouted that law by disclosing a document in possession of the National Prosecuting Authority (NPA) without the permission of the national director of public prosecutions.
The high court found that this was spurious. The letter was attached to an affidavit filed by Downer in response to an application from Zuma for a postponement in his corruption trial. It was also attached to Zuma’s own affidavit to motivate for the postponement, without claiming confidentiality.
Advocate Goeff Budlender SC, appearing for the NPA in the matter, argued that the private prosecution was an abuse intended to lay the ground for a further abuse in the form of the removal application. The aim was to delay the trial, he said, and reminded the court that every application Zuma had launched to date to achieve this had failed, including his stab at a permanent stay of prosecution.
“He launches his challenges one by one, each one starts only when the last one is finished, as in [it] has failed,” Budlender said.
Zuma made his first court appearance in the matter on 29 June 2005.
Eighteen years later, evidence has yet to be heard, although the trial officially got underway in early 2021. In May that year, Zuma entered a special plea in terms of section terms of section 106 (1)(h) of the Criminal Procedure Act in which he had argued that Downer was not sufficiently impartial and therefore lacked title to prosecute him.
That was dismissed by the then trial judge, Piet Koen, who eventually recused himself, saying this was necessitated by views he has expressed on the merits of Zuma’s ongoing bid to force Downer’s removal.
In his response to Zuma’s latest plea in this regard, Downer, on behalf of the
NPA, said the courts had now in five separate judgments — from the spy tapes saga to the stay of prosecution ruling to the dismissal of leave to appeal the private prosecution ruling — roundly dismissed the pillars on which his case rests. “These emphatic and repeated dismissals of Mr Zuma’s pillars are fatal to his current attempt to resurrect them to avoid his day in court,” he argued.
These rulings were bindings on the court now faced with a fresh removal application.
“These prior judgments do not leave Mr Zuma any room for escape. His current application is defeated by the rules res judicata (and issue estoppel) and stare decisis.”
In the present application, Zuma harks back to telephone conversations Downer had with investigative journalist Sam Sole in June 2008. Downer submits that he confirmed to Sole that the arms deal investigation was still ongoing, but when pressed gave no further information.
He stresses that he was “authorised to make disclosures to the media”, and did so in line with his duties in terms of the National Prosecuting Authority Act.
This was confirmed by the high court in June when it handed down judgment on the challenge to the private prosecution.
“It is accordingly no longer open to Mr Zuma to found his current application for Mr Downer’s removal on his complaint about the Sole conversations.”
As for Zuma’s insistence that his intention to pursue the private prosecution disqualifies Downer from leading the arms deal prosecution because he cannot be “neutral” when he faces charges brought by the accused, the state counters that said prosecution was rightly struck down.
“Mr Zuma launched his private prosecution with the ulterior purpose of creating a platform for a second application for Mr Downer’s removal. The full court accordingly correctly held that Mr Zuma’s private prosecution was an unlawful abuse of the process of this court.”
Zuma in his papers deems it “particularly distasteful and inappropriate” that the NPA let Downer depose to the state’s answering affidavit.
He denies that the application rests on events in the distant past, which the courts rejected as supposed evidence of wrongdoing by Downer, and insists that it is
brought on the basis of the charges that informed the private prosecution.
“Although this application relies on incidents which have cumulatively occurred over a long period of time, its main trigger is the most recent conduct or misconduct on the part of Mr Downer, which has, inter alia, resulted in the current private prosecution.”
He charges that Downer failed in an ethical duty to report that there was a “scheme” underway to “leak” the court papers with the military doctor’s letter attached to Maughan.
The word leak is used despite the fact that the papers were part of the public court record by the time Maughan wrote a news report based on these.
And Zuma then goes further to take aim at Maughan, insinuating that only she was given access to the papers — this is not true — because she could be relied upon to portray his application for a postponement in a negative light.
“Can there be any real doubt that Ms Maughan was being engaged in order to perpetuate the dominant media narrative that Mr Zuma was faking his illness to prove the ‘socalled Stalingrad tactic’?”
Zuma said although it is true that he has brought “a few challenges aimed at protecting his hard-earned constitutional rights”, it was unfair to blame him for the delays in the case.
Along the way, he revives his long-standing complaint, levelled not only in the arms deal matter but in response to his successful prosecution for contempt of court, that he is being victimised by the state and the judiciary.
“Mr Zuma did nothing different to what Mr Downer himself had done, namely, to challenge the lawfulness of the prosecution which he believes to be unconstitutional,” his lawyers submitted.
“To label Mr Zuma’s conduct as ‘Stalingrad’, but the same conduct by Mr Downer as a legitimate exercise of his constitutional rights, would be nothing but a blatant case of judicial apartheid.”
The SCA, in dismissing his application to appeal the enforcement order, said it was scandalous that he had accused the high court of bias. “It is a mere allegation, without any attempt to produce any evidence to justify it. It is improper.” The court also stressed that freedom of the press and the principle of open justice are closely interrelated. “There is a necessary interdependence between the court and the press. It has thus come to be accepted that the media, reporting accurately and fairly on legal proceedings and judgments, make an invaluable contribution to public confidence in the judiciary and, thus, to the rule of law itself.”