Zuma loses bid to remove Downer
The state’s attempt to set a trial date was stymied by the defence signalling that leave to appeal would be sought
The Pietermaritzburg high court on Wednesday dismissed former president Jacob Zuma’s latest bid to force the removal of state advocate Billy Downer as prosecutor in the arms deal corruption and fraud case.
The application had forced yet a further delay in a matter dating back to 2005 and Downer immediately asked the court to set a date for the trial to commence. But this was not to be, because Zuma’s counsel signalled that he was seeking leave to appeal.
Reading from his ruling, Judge Nkosinathi Chili said he was not persuaded by Zuma’s argument that allowing Downer to lead the prosecution would violate his fair trial rights.
“Having regard to submissions made by counsel, the relevant case law and most importantly the four pillars relied upon by Mr Zuma, I am not persuaded that Mr Zuma succeeded in establishing that the retention of Mr Downer as the prosecutor in this matter could prejudice his right to a fair trial enshrined in section 35(3) of the Constitution.”
Chili said that he would deliver his full judgment at a later date, but indicated that he was relying on some of the reasoning employed by former trial judge Piet Koen, who dismissed Zuma’s earlier attempt
to disqualify Downer through a special plea entered in 2021 in terms of section 106 (1)(h) of the Criminal Procedure Act.
There Zuma argued that Downer lacked title to prosecute him because he had abandoned impartiality and turned the case into a crusade against the former president.
Koen recused himself in January 2023, saying he felt compelled to do so because of the views he had expressed on the merits of Zuma’s ongoing bid to have Downer removed.
He took this step after it became apparent that Zuma would use his attempt to bring criminal charges against Downer in a private prosecution
as a fresh basis for pleading for his removal from the trial.
The criminal charges were dismissed by the high court as an abuse of process, in a ruling upheld by the supreme court of appeal. The appellate court described the private prosecution as a part of Zuma’s tireless Stalingrad strategy to delay a case in which he stands accused of taking bribes from French arms manufacturer Thales in the 1990s.
The appellate court said the history of the case showed that “on any reckoning, the scale of litigation, which is likely unprecedented in the South African courts, justifiably attracts the epithet ‘Stalingrad’”.
Zuma made his first court appearance
in 2005 and pleaded not guilty to fraud, corruption, money-laundering and racketeering charges in May 2021, but the myriad of interim applications means no evidence has been led.
Once Chili had ruled, Downer asked that the court set a trial date.
“In the pecking order of cases on the court rolls of our country, this matter should be given the highest priority,” he added.
Zuma’s counsel, advocate Dali Mpofu, countered that Downer was mistaken in arguing that the dismissal of the application for his removal meant the trial could proceed because his client was seeking leave to appeal Chili’s ruling.
This meant that the operation of the ruling was suspended, and would remain so pending the outcome of the appeal bid, he said, before accusing Downer of discourtesy on the matter of court dates.
Mpofu said although Downer told the court that he had had discussions with advocate Barry Roux, who is appearing for Thales, the second defendant, he has had none with Zuma’s legal team. He then moved that the matter be postponed indefinitely, to allow the parties to hold private case management discussions.
Downer objected, saying: “The state opposes that with all the might that we can possibly summon.”
He reiterated that in the state’s view Chili’s ruling brought the case back to where it stood before Zuma filed for his removal, and would develop this argument in due course.
Therefore, he said, the state was not prepared “to go back onto the merry-go-round of timetables and the exchange of papers and the appeals on this issue on which Your Lordship has ruled today in order to postpone the setting of a trial date”.
He suggested that the court adjourn briefly to allow counsel to confer on a trial date.
Chili proposed that a date be set for a pre-trial conference, but Downer said that posed the risk of counsel’s diaries filling up in the meanwhile, which would make for further delays.
“We don’t want that My Lord, the public does not want it, we don’t want it, the courts don’t want it and your Lordship does not want it.
“The courts have ruled, the courts have ruled firmly and we now need to move on.”
Chili set the matter down for a pre-trial hearing on 17 May.