Former president Jacob Zuma. Photo: Supplied
The arms deal corruption trial against Jacob Zuma was postponed on Monday until mid-August to hear a new application the former president has brought for the removal of Billy Downer as the state prosecutor in the matter.
It is Zuma’s second attempt at forcing Downer’s removal since the trial resumed almost two years ago.
By doing so, he is staging another trial within a trial and dimming any hope that the court would this year hear the state lead evidence on charges of corruption, fraud, money-laundering and racketeering he faces.
In the first, failed application brought in terms of section 106 (1)(h) of the Criminal Procedure Act (CPA), Zuma argued that Downer lacked standing to prosecute the matter because he had abandoned impartiality.
This time, he is again claiming bias but invoking section 35 of the Constitution to plead that Downer’s conduct over the almost two decades since the case was first brought to court had robbed him of his fair trial rights.
“I believe that I can no longer have a fair trial as guaranteed in section 35 of the Constitution if Mr Downer remains the prosecutor in the matter,” he alleges in a founding affidavit.
“The evidence is that his overall conduct in relation to my prosecution is inconsistent and incompatible with my right [to] a fair trial,” the former president said, adding that he had fresh evidence to indicate that Downer should be disqualified.
“Since the adjudication of my section 106 plea application, ample new evidence has emerged which confirms my belief that Mr Downer is not fit to prosecute my criminal trial by reason of disqualifying bias and lack of the requisite prosecutorial impartiality.”
He then argued that the fact that he has brought a private prosecution against Downer and that the lawyer is opposing it, had created a conflict of interest that made it untenable for him to continue as the trial prosecutor.
“Such a state of affairs is inherently inimical to Mr Downer simultaneously remaining as the prosecutor in my latter prosecution.”
In that case, Zuma accuses Downer of leaking a letter from a military doctor stating that he suffered an undisclosed illness to the media and thereby breaching the law by disclosing a document in possession of the National Prosecuting Authority without the permission of the national director of public prosecutions.
But Zuma’s own lawyers had not claimed confidentiality when they filed the letter as part of an affidavit pleading for an adjournment, hence it became part of the public court record. It was also not forwarded to the media by Downer, but by senior counsel acting for the NPA.
Counsel for Downer, Geoff Budlender SC, last month told the high court the charge was spurious and the private prosecution an abuse of process, plainly instituted for the purpose of further obstructing the 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.
“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.”
Zuma, in his founding affidavit, said Downer was also conflicted for historical reasons.
Here, he repeated his complaint that the former head of the now defunct Scorpions, Leonard McCarthey, misconducted himself in investigating the arms deal case and that in bringing the charges, Downer had aligned himself with such. Downer had moreover actively, impermissibly participated in the investigation, he said.
“His conduct is of a prosecutor who harbours a historically very unkind, unfair and biased view of me.”
Zuma’s relentless efforts to force Downer’s removal contributed to Judge Piet Koen’s decision in January to recuse himself as the presiding judge in the corruption trial.
Koen said the decision was difficult but necessary because the views he has expressed on the merits of Zuma’s interlocutory application on Downer’s standing, which he dismissed and subsequently denied leave to appeal the ruling, could be seen to create a reasonable apprehension of bias as the court is confronted with another attack on his standing.
On Monday, Downer told the court that the prosecution only received Zuma’s latest application in full on Sunday, which meant he had no choice but to ask for a postponement to allow the state to prepare a reply.
“Despite the fact that we would much have preferred to have begun the trial today, which we could have done, we all agreed that the state needs time to properly deal with this new application, which is a voluminous application of some 73 pages long, with volumes and volumes of annexures,” Downer said
“So we need time properly to answer, my learned friends need time to reply and we need to go onto the heads of argument timetable … We proposed a timetable for the proper adjudication of this matter going forward, so that stipulates that the proposed dates are Tuesday the 15th and Wednesday the 16th of August.”
Downer then asked Judge Nkosinathi Chili to reserve the last term of this year and the first of 2024 for hearing the trial.
But Dali Mpofu, for Zuma, objected.
“We would not be so keen on that, because that really has an impact on our diaries,” he said, adding that this would be best decided after the new application had been heard.
The charges against Zuma relate to bribes he allegedly received from French arms dealer Thales, through his former financial adviser, Schabir Shaik, and were first instituted in 2005. They were formally withdrawn in 2009, but this decision was set aside as irrational in 2016.
Zuma then sought a permanent stay of prosecution, in large part on the basis of the allegations against Downer he is now reviving, but was denied by the supreme court of appeal in 2019. The appellate court upheld a high court ruling that dismissed Zuma’s argument that the arms deal probe and decision to prosecute him was vitiated by political meddling.
The trial then resumed in 2021, with Zuma pleading not guilty to all 12 charges.