Zuma muddies the legal waters, filing criminal charges against prosecutor Downer over ‘leak’
Former president Jacob Zuma filed a criminal complaint with the South African Police Service on 21 October, demanding that the lead prosecutor in his graft case, advocate Billy Downer, be investigated for allegedly leaking a “confidential” medical report via a third party to a News24 journalist in August.
The laying of charges could be seen as an attempt at a contingency plan, given that Zuma’s special plea for the removal of Downer is not likely to succeed. Zuma could then tell the court his trial cannot proceed until the police have completed their investigation.
Yet, according to his eight-page sworn statement filed with the Pietermaritzburg police station, Zuma also wants an investigation of Downer’s alleged 2008 disclosure of confidential information to investigative journalist Sam Sole. The incidents were part of a pattern of unlawful disclosure of information that he had had to contend with during the Arms Deal matter, said Zuma.
Section 41 (6) of the NPA Act prohibits disclosing information without the permission of the national director.
Zuma accuses Downer of allegedly leaking his medical affidavits containing information about his health. Zuma said that during the course of the Arms Deal case it was clear “there is evidence that criminal conduct has taken place in an attempt to manipulate my ... prosecution for unlawful purposes”.
Zuma’s statement was replete with assertions he has often made in court, in public and at his only appearance before the Zondo Commission: that foreign spies had conspired with local agents – including investigators and National Prosecuting Authority (NPA) prosecutors – to ensure he was prosecuted and thus politically maligned.
He again mentioned the Browse Mole “intelligence” report and the affidavit deposed by former prosecutor Willie Hofmeyr.
Hofmeyr filed the affidavit in a North Gauteng High Court matter brought by the Democratic Alliance, which led to the 2009 decision taken by the then National Directorate of Public Prosecutions (NDPP) head Mokotedi Mpshe to withdraw the case against Zuma being overturned in April 2016. The Supreme Court of Appeal upheld the decision and paved the way for Zuma’s prosecution.
Hofmeyr’s affidavit stated that former NDPP head Leonard McCarthy – who was the head of the NPA’s since shuttered investigations arm, the Scorpions – and former intelligence minister Ronnie Kasrils were part of a cabal using their positions and influence in a bid to politically support then president Thabo Mbeki and target Zuma.
Zuma was released on medical parole last month, thanks to an as-yet-undisclosed medical condition, having completed less than two months of his 15-month sentence for being in contempt of a Constitutional Court order that he continue his testimony before the Zondo Commission.
He is expected in the Pietermaritzburg High Court on 26 October for the continuation of the Arms Deal matter, where presiding judge Piet Koen is set to deliver a judgment on Zuma seeking that Downer be removed in terms of Section 106(1)(h) of the Criminal Procedure Act. Zuma contends that, if he is successful, he will be entitled to an immediate acquittal under the same Act.
Zuma is seeking Downer’s removal on the grounds that the veteran prosecutor is lacking in “independence and impartiality” and is unable to conduct a “lawful prosecution” that will uphold Zuma’s constitutional rights to a fair trial. The NPA has argued that the plea application be dismissed.
During arguments for and against the plea application in September, Zuma’s advocate, Dali Mpofu SC, told the court that the alleged leaking of his medical information to News24’s Karyn Maughan “was one of the most concerning issues for Mr Zuma”.
The State countered that, once the documents were lodged with the court, they were public records.
Downer stated in his supplementary affidavit that documents, including the medical note, were given to Maughan by NPA advocate Andrew Breitenbach with an embargo, which she respected. The note did not name any specific illness Zuma was suffering from.
Zuma’s statement to police says: “Advocate Downer authorised the leaking of sensitive and private information obtained in the course and scope of his employment in breach of the … NPA Act.”
Zuma has also said he wants to “extend my complaint of criminal wrongdoing to cover all other persons as reflected in the documents attached … who are either prosecutors and/or investigators who had violated the provisions of the NPA Act and the Constitution”.
The NPA said in a statement that “these charges are laid while the matter is subject to judicial determination by the High Court in Pietermaritzburg and judgment is expected to be delivered on 26 October 2021”.
The NPA said it was concerned about “the timing in light of the pending judgement of the High Court”.
It said: “Adv Downer SC is a highly respected prosecutor who has carried himself with integrity throughout his career in the NPA… All NPA prosecutors are required to act without fear and favour and should feel confident to deliver on their mandates without fear of intimidation. However, we will allow the Director of Public Prosecutions in KwaZulu-Natal to deal with the matter as and when she receives the case docket from the police.”
Zuma is facing one count of racketeering, two counts of corruption, one count of money laundering and 12 counts of fraud in the Arms Deal case.