Daily Maverick

Zuma muddies the legal waters, filing criminal charges against prosecutor Downer over ‘leak’

- By Des Erasmus

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.

 ?? Photo: Mandala Langa ?? Former president Jacob Zuma arrives at the Pietermari­tzburg Police Station.
Photo: Mandala Langa Former president Jacob Zuma arrives at the Pietermari­tzburg Police Station.

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