Former president Jacob Zuma at the uMkhonto Wesizwe (MK) party rally at Orlando Stadium in Soweto. Photo: Delwyn Verasamy/M&G
The Pietermaritzburg high court on Thursday postponed a pre-trial hearing in Jacob Zuma’s arms deal case till September 11 to grant his request for further written reasons for the dismissal of his most recent bid to have advocate Billy Downer removed as the state prosecutor in the matter.
Judge Nkosinathi Chili said “exceptional circumstances exist that warrant the granting of the request” made by advocate Dali Mpofu, Zuma’s senior counsel. He said due to prior commitments he could, however, only do so in a fortnight.
Chili’s decision was a setback for the state which had asked the court to dismiss the request and set a trial date for the corruption case that has been limping through the courts for nearly two decades.
It followed a morning of to and fro between the state prosecutor Downer and Mpofu as to the purpose of the hearing.
Downer was plain that the state was seeking a trial date and moved that the matter be heard in the second and third court term of next year.
The state was asking that the court rule on the application for further reasons for Chili’s dismissal in March of Zuma’s second application since 2021 for Downer’s removal and its decision with regard to his application for leave to appeal that ruling.
“Thirdly and perhaps most importantly, my lord, we ask that the court issue an order for the postponement of this matter to trial,” he said.
“We ask that the matter be postponed for trial to the second term of 2025, being the 14th of April to the 20th of June, and the third term, 21st of July to the 19th of September 2025 and any further dates that the honourable judge presiding at the trial and the honourable judge president may determine.
“So we want the trial to start, my lord.”
Mpofu argued that this was premature and that the state was “putting the cart before the horse”, given that his client was seeking to challenge the court’s dismissal of his application to have Downer removed as prosecutor.
To that end, he continued, his client was constitutionally entitled to Chili’s full reasons for his decision. The state pointed to ample precedent for judges giving full decisions on interim rulings at the close of a trial but Mpofu said Downer was “wrong about the law”.
“Courts are compelled to give reasoned judgments so that citizens can know why they have certain orders adverse to them made against them. It is just a constitutional right that flows directly from section 34 of the Constitution … the right to a fair hearing and so on.”
“The reasons give you the ability to appeal and that appeal is itself a self-standing right.”
By not providing full reasons, Mpofu said, the court had “tied our hands” because it left Zuma unable to exercise his right to appeal, adding that there was a 50% chance another court would disagree with Chili’s ruling.
He added that Zuma would not agree to a trial date while Downer continued to lead the state’s case, since his removal was at issue in the appeal they wished to pursue, and accused the prosecutor of “opportunistically” trying to extract a date in a hearing intended to deal with the applications for reasons needed for that appeal.
Moreover, the court could not rush from pronouncing on the application for reasons for ruling on the one for leave to appeal, he said.
In his March ruling, Chili said he was not persuaded by Zuma’s argument that allowing Downer to lead the prosecution would violate his fair trial rights.
“Having regard to submissions made by counsel, the relevant case law and, most importantly, the four pillars relied upon by Mr Zuma, I am not persuaded that Mr Zuma succeeded in establishing that the retention of Mr Downer as the prosecutor in this matter could prejudice his right to a fair trial enshrined in section 35(3) of the Constitution.”
Chili said he was relying on some of the reasoning employed by former trial judge Piet Koen, who dismissed Zuma’s earlier attempt to disqualify Downer through a special plea entered in 2021 in terms of section 106 (1)(h) of the Criminal Procedure Act (CPA), but would incorporate his full reasons in the court’s judgment at the close of the trial.
Downer replied to Mpofu by saying it was simply incorrect that Chili had failed to give reasons for his decision.
“The fact that my learned friend might be dissatisfied with the nature of those reasons or that they were too short is an issue that can be taken up on appeal.”
He added: “The fact that, in different circumstances, his Lordship Judge Koen might have chosen to give full reasons in a different application at a different stage in the proceedings is no precedent for this court to follow to say that full reasons have to be given.”
After Koen’s ruling, Zuma launched a second application to force Downer’s removal on the basis that he had in the meanwhile brought criminal charges, in a private prosecution, against the prosecutor for allegedly leaking his medical records to the media.
The criminal charges were dismissed by the high court as an abuse of process, in a ruling upheld by the supreme court of appeal.
The appellate court described the case as a part of Zuma’s tireless Stalingrad strategy to delay a case in which he stands accused of taking bribes from French arms manufacturer Thales in the late 1990s.
It said the history of the case showed that “on any reckoning, the scale of litigation, which is likely unprecedented in the South African courts, justifiably attracts the epithet ‘Stalingrad’.”
Referring to the most recent chapters, Downer said the findings of several courts on Zuma’s efforts to have him removed meant there was less reason for Chili to expand on the grounds for his March ruling than might have been the case at the time Koen made his ruling.
“The mala fides, the lack of good faith which have been found by the various court, full courts and the supreme court of appeal and, by implication, the constitutional court, all those issues were not issues which had been crystalised by the time that his Lordship Judge Koen, in his wisdom, decided to give reasons in a previous application.”
Zuma made his first court appearance in 2005 and pleaded not guilty to fraud, corruption, money-laundering and racketeering charges in May 2021, but the myriad interim applications means no evidence has been led.