Former president Jacob Zuma. (Photo by Jerome Delay / POOL / AFP)
Former president Jacob Zuma’s private prosecution of advocate Billy Downer was merely the latest episode in more than 18 years of attacking the prosecutor leading the arms deal corruption case, the defence argued on Monday.
Advocate Geoff Budlender told the Pietermaritzburg high court it would not be the last, because Zuma had already indicated that he hoped to use a positive outcome in this process to apply for Downer to be removed from the trial.
He noted that every court application Zuma has launched to halt his trial, or the criminal investigation that preceded it, has failed.
This included his bid at a permanent stay of prosecution, which the high court rejected in 2019. But this has not stopped Zuma from repeating his lament against the National Prosecuting Authority (NPA) in the present case against Downer.
“Every single one of them has failed. He launches his challenges one by one, each one starts only when the last one is finished, as in [it] has failed,” Budlender said.
“He then repeatedly seeks leave to appeal, and then further applications for leave to appeal against the adverse judgments and orders against him.
“He made his first appearance in court on the 29th of June 2005. Almost 18 years later, while his trial has formally commenced, it has not reached the stage at which any evidence has been heard against him and through all this process Mr Downer has been the lead prosecutor and Mr Zuma has attacked him and attempted to discredit and disqualify him.”
After his trial finally began, Zuma in May 2021 entered a special plea in terms of section terms of section 106 (1)(h) of the Criminal Procedure Act (CPA) in which he had Downer was not sufficiently impartial and therefore lacked title to prosecute him.
“He did so on the very facts that are now before your lordship and your ladyships, the same facts,” Budlender noted.
In October last year, mere days before the high court dismissed the special plea, he laid charges against Downer with the police.
His repeated attempts to appeal the high court judgment were denied, all the way to the constitutional court.
“Now he wishes to proceed with the same case in this court and ultimately the criminal court. We say that simply can’t be. We say this too: that the case now is weaker than the case that was before his Lordship, Justice [Piet] Koen,” Budlender said.
This was so because the court now had before it an affidavit from advocate Andrew Breitenbach in which he took responsibility for disclosing a letter from a military doctor, stating that Zuma suffered from an unnamed ailment that required urgent treatment.
Zuma accuses Downer of leaking the letter to the media and thereby breaching the law by disclosing a document in possession of the NPA without the permission of the national director of public prosecutions.
The letter was attached to an affidavit filed by Downer in response to an application from Zuma for a postponement in his corruption trial.
Zuma had attached the letter to his own affidavit to motivate for a postponement, without claiming confidentiality.
Budlender said Breitenbach, who was representing the NPA, had moreover made clear that he did not seek Downer’s permission to give the affidavit to News24 reporter Karyn Maughan.
“That is really the end of the case,” he said.
“That is the evidence before the court and it is undisputed. There is no evidence before the court to show that it is wrong.”
Hence the private prosecution was an abuse of process, instituted for the purpose of further obstructing the arms deal fraud and corruption trial and preventing Downer from doing his job.
“It is part of the strategy which was announced in 2007 by Mr Zuma’s counsel.”
Budlender said Zuma had been frank with the court in disclosing exactly what he planned to do next, namely use the private prosecution as cause to seek Downer’s removal as prosecutor in his trial.
“He says he is going to bring an application for the removal of Mr Downer as the prosecutor and the basis will be that he is being privately prosecuted.
“And so this private prosecution is not only to create delay by itself, it is to create a foundation to be a springboard for further delay … And so this prosecution is not just an abuse by itself, it is an abuse which, in Mr Zuma’s counsel’s own words, is the foundation for a further abuse which is yet to come, which is an application to challenge Mr Downer’s position.”
Advocate Kate Hofmeyr, appearing on behalf of the Helen Suzman Foundation, which was admitted as a friend of the court, said this was the only instance of which she could find a record where an accused has brought a private prosecution against the state prosecutor in his trial.
Granting Downer’s application for the case to be dismissed would strengthen prosecutorial independence, she argued.
Maughan too has filed for dismissal, arguing that the charge against her was baseless and that Zuma lacked standing to pursue it in any event as she was not cited in the nolle prosequi certificate the NPA issued, which was a prerequisite for initiating a private prosecution.
Advocate Steven Budlender, for Maughan, told the court it was clear that Zuma’s aim was to intimidate her and stop her reporting on his legal travails.