Mail & Guardian

High court KOS Zuma’s case against Downer

Judge Chili said the former president’s remaining appeal options would not be prejudiced by this

- Emsie Ferreira

The Pietermari­tzburg high court this week struck Jacob Zuma’s private prosecutio­n of state prosecutor Billy Downer and news reporter Karyn Maughan off the roll, while Zuma pursues his bid to keep the case alive by appealing its dismissal to the apex court.

Judge Nkosinathi Chili, in a brief ruling, said Zuma would suffer no prejudice if the matter is removed from the roll “pending finalisati­on of his appeal against the order of the full court in this division”.

The high court in June 2023 set aside Zuma’s private prosecutio­n of Downer and Maughan as an abuse of process. Zuma had accused Downer, the prosecutor in his arms deal fraud and corruption case, of breaching the National Prosecutin­g Authority Act. He claimed that Downer had leaked confidenti­al medical informatio­n in the form of a letter from a military doctor, filed by lawyers for the former president in that trial in August 2021, to Maughan.

The letter crypticall­y stated that Zuma needed treatment for an undisclose­d ailment. His lawyers did not claim confidenti­ality when they submitted it to court, hence it became part of the public record. It was moreover not Downer but counsel who gave the document to Maughan and other media, as per accepted practice.

In setting aside the summons Zuma had served on Downer and Maughan, the high court held the former president had come to court “with unclean hands”.

It said it was clear that the private prosecutio­n was initiated as a “precursor” to an eventual applicatio­n for the removal of the prosecutor who has pursued the arms deal charges for nearly two decades.

When Zuma filed for leave to appeal the ruling, Downer and Maughan successful­ly applied to the high court in terms of section 18 of the Superior Court Act for the order setting aside summons to remain in force pending the outcome of his appeal against the main judgment.

He sought to challenge this ruling in August in the supreme court of appeal (SCA), but it agreed with the high court and held that his appeal on the enforcemen­t order too was in itself an abuse of process and part of the “Stalingrad” litigation strategy Zuma has pursued to delay his corruption trial.

The court dismissed Zuma’s applicatio­n with costs, and described his accusation that the high court was biased when it ruled against him as scandalous. “It is a mere allegation, without any attempt to produce any evidence to justify it. It is improper,” the SCA said.

On 7 December last year, It dismissed Zuma’s applicatio­n for leave to appeal the setting aside of the private prosecutio­n by the high court. In January he brought an applicatio­n to the SCA president for that decision to be referred back for reconsider­ation but this was dismissed.

Zuma intends to seek leave to appeal the SCA ruling in the constituti­onal court and his deadline to do so is nigh.

The constituti­onal court’s earlier dismissal, on 20 February, of his applicatio­n for leave to appeal against the SCA’S dismissal of his appeal against the enforcemen­t order in terms of section 18(4) of the Act, means it is final.

Chili’s ruling follows after counsel for the National Prosecutin­g Authority and for Maughan asked the court to strike the case off the roll in light of the fact that the setting aside of summons therefore remains in force regardless of Zuma’s further attempts at overturnin­g the June 2023 ruling by the high court.

Downer and Maughan will no longer be required to keep presenting themselves to court while Zuma exercises his remaining appeal options. They are only directed to do so in the event that the high court’s ruling of June last year is overturned.

In March, Judge Chili dismissed an

applicatio­n by Zuma to have Downer removed as the prosecutor in the arms deal case.

He said he was not persuaded by Zuma’s argument that allowing Downer to lead the prosecutio­n would violate his fair trial rights. It was Zuma’s second failed attempt to disqualify the seasoned prosecutor from leading the state’s case.

In the first, he had entered a special plea entered in 2021 in terms of section 106 (1)(h) of the Criminal Procedure Act (CPA), pleading that Downer had impartiali­ty and therefore lacked title to prosecute.

It was dismissed by Judge Piet Koen and Zuma’s attempts to appeal came to nought. The former president is now attempting to appeal Chili’s March ruling.

The judge has set down the arms deal matter for a case management meeting in May.

 ?? Photo: Darren Stewart/gallo Images ?? Bench: Karyn Maughan and Billy Downer will no longer have to present themselves to court.
Photo: Darren Stewart/gallo Images Bench: Karyn Maughan and Billy Downer will no longer have to present themselves to court.

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