Zuma takes on Downer in private case
Former president turns the tables on State advocate and prosecutes him
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).”