/ 17 May 2021

Zuma trial postponed to 26 May as defence objects to state prosecutor Downer

Zuma (2)
Legal teams argued that the only remedy was for Jacob Zuma to return to prison, but his advocate countered that at this late stage, it would amount to a fresh sentence. (Nic Bothma / AFP - Getty Images)

The fraud and corruption trial of former president Jacob Zuma was postponed on Monday until 26 May to allow his lawyers to formally tender a plea that advocate Billy Downer has no delegation to prosecute the long-running matter.

Downer informed Judge Piet Koen that he was warned by Zuma’s advocate, Thabani Masuku, last week that the defence team would bring this plea in terms of section 106 (1)(h) of the Criminal Procedure Act.

But Zuma’s team has yet to furnish the state with an affidavit setting out its full reasons for seeking Dower’s removal.

Therefore Downer asked that Zuma’s formal pleading to the charges also stand over until such time that the defence had submitted its documents and the National Prosecuting Authority (NPA)  had an opportunity to study these and respond.

Koen, with Masuku’s agreement, then postponed the matter.

Though the section 106 application is forcing a delay, Masuku assured the high court in Pietermaritzburg that he was ready to proceed with the trial, after the attorney of record, Eric Mabuza, and lead counsel, Muzi Sikhakhane, withdrew in April.

Mabuza was in court on Monday to seek formal permission to withdraw, which was readily granted after Masuku informed Koen that Zuma had no objection and was not seeking a postponement to prepare.

“Well, on that basis then I can’t see any prejudice to the accused,” Koen said. 

Downer raised no objection either.

“The state is in the hands of the court, it has no objection. We do place on record, however, that it is unfortunate that the instructions seem to have come very close to the start of the trial and we would not wish that to prejudice the conduct of the trial in any way,” he said.

The veteran state prosecutor secured the fraud and theft conviction of Zuma’s former financial adviser, Schabir Shaik, in 2005 on charges relating to close to 800 payments he made to Zuma, totalling R4.1-million and mostly with money obtained from French arms manufacturer Thales.

The state alleges that Zuma took bribes from Thales, through Shaik, to shield the company from investigation for improper arms procurement dealings in the 1990s, when it won a contract to supply combat systems to the South African navy.

Masuku signalled that Zuma would plead not guilty to all charges — 12 charges of fraud, two of corruption, one of racketeering and one of money-laundering.

The charges were controversially withdrawn in 2009 — paving the way for Zuma’s election as state president — and reinstated by then national director of public prosecutions Shaun Abrahams in 2018, after Cyril Ramaphosa succeeded Zuma as head of state.

A subsequent bid to secure a permanent stay of prosecution was unsuccessful. The NPA’s spokesperson, Sipho Ngwenya, said after the court adjourned that the authority would study the basis for the defence’s plea but hoped “they are not trying to bring what had failed through the back door” — a reference to the failed application for a stay of prosecution. 

He added that Downer has been handling the case for the state for the better part of two decades.

The defence’s application means that they will argue that Downer does not have the required authority from the national director of public prosecutions, Shamila Batohi, to prosecute the matter.

“We are not privy to the reasons behind this assertion as we are certain that advocate Downer is duly authorised to prosecute … We shall see what is in their papers,” Ngwenya told the Mail & Guardian. “We were anticipating a normal application with substantive reasons on why advocate Downer should recuse himself. They didn’t bring those papers; they were not ready. He has full authority to prosecute. It has never been withdrawn.”

Suspended ANC secretary general Ace Magashule was at court on Monday, telling reporters: “I am here to support the president.” This comes after he served court papers on Ramaphosa and the ANC last week to challenge his suspension in a move that will intensify the latest power struggle playing out in the party.

A source close to the former president pointed out: “Ace right now needs the support of Zuma’s supporters.”

The Zuma and Thales trial was set down until 20 June, or whatever dates thereafter were needed.

Public Works Minister Patricia de Lille, often referred to as the original arms deal whistleblower, was at court on Monday because Downer had planned to call her as the state’s first witness.

The state has a list of 217 witnesses.