The Mercury

Zuma takes on Downer in private case

Former president turns the tables on State advocate and prosecutes him

- KUBEN CHETTY and NTOMBI NKOSI

FORMER president Jacob Zuma’s private prosecutio­n of senior State advocate Billy Downer is set to be heard in the Pietermari­tzburg High Court next month.

The National Prosecutin­g Authority (NPA) yesterday responded to next month’s private prosecutio­n court appearance, saying it stood by Downer.

Zuma in October laid criminal charges at the Pietermari­tzburg police station against Downer for the alleged leaking of his medical records to News24 journalist Karyn Maughan who is the second accused in the matter. But when the NPA declined to prosecute the matter, Zuma said he was going ahead with a private prosecutio­n. The charges relate to the alleged contravent­ion of section 41(6) of the NPA Act.

Jacob Zuma Foundation spokespers­on Mzwanele Manyi said one of the issues that would be addressed in court on October 10 is why Downer allegedly released a court document when it had not been stamped by the registrar of the court.

“It was not a public document and publicatio­n was delayed because of this. The issue is the timing of the release of this informatio­n. A prosecutor is not at liberty to release documents that have not been made public,” Manyi said.

Downer is the State prosecutor in the 1990s Arms Deal trial in which Zuma and French arms manufactur­er Thales are the co-accused.

In a statement yesterday, the Zuma foundation said sheriffs had served criminal summons on Downer and Maughan.

“Ms Maughan was the recipient of the medical informatio­n which was contained in a document which was acquired in the conduct of prosecutor­ial duties. Neither of the two accused persons had the requisite written permission of the NDPP (National Director of Public Prosecutio­ns).”

NPA spokespers­on Mthunzi Mhaga in a statement confirmed that Downer was served with a summons.

“This follows the institutio­n of a private prosecutio­n by Mr Zuma, after the Director of Public Prosecutio­ns in KwaZulu-Natal, advocate E Zungu, issued a nolle prosequi certificat­e, following her decision not to prosecute advocate Downer on the alleged contravent­ion.

“The NPA and its leadership fully support advocate Downer as we believe that these charges are without merit. They are only designed to intimidate him in the prosecutio­n of Mr Zuma, and to further delay the trial. The private prosecutio­n amounts to abuse of process.” It added that Downer would continue to lead the NPA’s prosecutio­n team in the Zuma and Thales trial.

“He has the NPA leadership’s full confidence. His track record of prosecutor­ial integrity and profession­alism speaks for itself,” the statement read.

Maughan on Twitter issued a response from News24 editor Adriaan Basson: “Clearly an attempt by Mr Zuma to bully Maughan and News24 when he knows we did nothing wrong.”

“There is absolutely nothing strange or wrong about being given access to court papers that are about to be filed at court, for public viewing. Court papers are inherently public documents. This is a cornerston­e of open justice in a democracy. Maughan was just doing her job and threatenin­g her with private prosecutio­n is a blatant and cynical attack on media freedom in this country. Maughan will continue to report on Zuma’s criminal cases and we will defend her to the hilt,” Basson told The Mercury’s sister newspaper The Star.

Zuma has attempted to get Downer removed from the corruption case as he argued that the senior prosecutor was biased against him. However, a Pietermari­tzburg High Court judge turned down his special plea applicatio­n in this regard.

Zuma then approached the Supreme Court of Appeal (SCA) which also turned him down. He also approached then SCA Judge President Mandisa Maya to reconsider his special plea but this was also declined. He has since turned to the Constituti­onal Court.

Commenting on his Constituti­onally Speaking blog post in 2017, constituti­onal law expert Pierre de Vos said there were various challenges with private prosecutio­ns, including whether the law would be applied equally, that they were costly and could only be carried out according to stringent laws.

“Suspects who fall foul of private individual­s with pots of money or fall foul of private organisati­ons with their own political agendas might be prosecuted, while other suspects might escape justice. This is fundamenta­lly unfair.”

He said sections 7 and 8 of the Criminal Procedure Act provided for limited exceptions to the rule that the NPA, representi­ng the State, should prosecute criminal suspects. Section 8 of the act allowed for organisati­ons with statutory rights to bring private prosecutio­ns.

“In terms of section 7, some private individual­s may launch a private prosecutio­n once the NPA has declined to prosecute a suspect and has issued a nolle prosequi (a notice of abandonmen­t by a prosecutor).”

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