Former president Jacob Zuma’s application to have prosecutor Billy Downer removed from his fraud and corruption trial relies, in his own admission, on submissions he advanced during his unsuccessful application for a permanent stay of prosecution on charges stemming from South Africa’s 1990s arms deal.
The admission comes on page 75 of the application Zuma’s defence team filed late on Wednesday night and that is now likely to force a further delay in a matter that has been stumbling towards trial for almost two decades.
The application is premised on the contention that Downer, who has worked on the case since the start, lacks the required independence and impartiality, but then goes further to beg that should the prosecutor be removed, Zuma be acquitted on the basis that he would not receive a fair trial.
“In the event that Downer SC is removed, I am entitled to be acquitted in terms of section 106(4) of the CPA [Criminal Procedure Act] because my trial cannot be conducted fairly in accordance with the Constitution under the circumstances.”
Zuma argues over 141 pages that the handling of the charges, first formulated in 2003, reflects a National Prosecuting Authority (NPA) “gone rogue” and revives his contention that he is the victim of a political conspiracy.
To do so, it harks back to the allegations of political meddling by former president Thabo Mbeki’s administration in the timing of his initial indictment, which informed the controversial withdrawal of the charges in 2009, and digs up both the so-called Spy Tapes and the Browse Mole report as proof of a political conspiracy to discredit him.
Zuma says he is not seeking to impugn Downer’s integrity, but claims that his conduct and that of the former head of the now defunct Scorpions, Leonard McCarthy, was central to the argument that he cannot be guaranteed a fair trial.
His application is based on section 106(1)(h) of the CPA and argues that Downer lacks the proper delegation to prosecute the matter, because he was witness to meddling by McCarthy at the instructions of Mbeki.
“It is an application based on his failure to ensure that my prosecution is not compromised by unacceptable political interferences which he is aware of, but seeks to downplay these violations to satisfy his sense of prosecutorial duty.”
He goes on to say that Downer knew that McCarthy and former national director of public prosecutions Bulelani Ngcuka interfered in the case.
The charges against Zuma were withdrawn by then acting head of public prosecutions Mkotedi Msphe in 2009, paving the way for him to become president, on the basis that leaked recordings suggested Zuma’s indictment was delayed to prevent creating an impression that he was victimised in the run-up to the ANC’s elective conference in Polokwane two years earlier.
“I refer to the so-called Spy Tapes, the decision of Mpshe to terminate my prosecution, which Downer vehemently opposed to the point that he cried when that decision was made, and the affidavits … confirming the NPA processes had been abused to advance political interests.”
The Spy Tapes were eventually released after a trial within a trial in the course of the Democratic Alliance’s legal review of Mpshe’s decision, which led to the charges against Zuma being reinstated in 2018.
He argues that Downer was so hell-bent on prosecuting him that he was prepared to file an affidavit in support of the court bid by the DA — “a political party that was and remains hostile to me”.
In 2018, Zuma responded to the reinstatement of the charges by applying for a permanent stay, which the KwaZulu-Natal high court dismissed in October 2019. Five months later the supreme court of appeal denied him leave to appeal that ruling.
In 2017, the supreme court of appeal upheld the high court ruling that Msphe’s decision to dismiss the charges was “irrational”. Zuma argues that the appellate court erred in separating the merit of the charges against him from the conduct of the NPA, and hence the ruling cannot be seen as neutral.
He says the picture that emerged in court was of a prosecutorial authority that had thrown the rule book to the wind and no amount of “judicial refusal of the facts” can alter the view that his prosecution was inherently political.
“To Downer’s knowledge, Ngcuka and McCarthy unlawfully interfered with, hindered and obstructed the prosecuting authority in the exercise of its duties and functions.
“A member of the NPA cannot be supine when he perceives that a lawful prosecutorial decision is being subverted to advance or safeguard political interests.”
The application notes that former deputy director of national prosecutions Wilie Hofmeyr has never retracted his submission that McCarthy used the Browse Mole project to discredit him in the run-up to the Polokwane conference — where Zuma prevailed in his power struggle with Mbeki for control of the ANC.
This should “horrify” Downer, Zuma contends.
The mere fact that Downer reported to McCarthy, who instigated this project, casts doubt on the integrity of his prosecution, because the aim of the investigation was to enable the state to bring yet more charges against him.
“Downer’s attitude to this evidence of political manipulation has consistently been to ignore it and charge me anyway,” he argues.
“His prejudice and impartiality in the matter is obsessive, chronic and dangerous to a process that requires candour, integrity, calmness, fairness and impartiality.”
Zuma’s application argues at some length that he was unfairly prejudiced by the NPA’s failure to charge him along with his former financial adviser Schabir Shaik in 2003, as Downer had wanted to do.
Instead, he argues, Ngcuka used the Shaik trial as a “dry run”, with the intention of prosecuting Zuma later, depending on its success.
“I would either have been acquitted or convicted at the same time as Shaik. If I had been acquitted then the effect of the media narrative that I am a corrupt criminal would not have gained the gravity of conviction as it has as a consequence of the NPA’s failure to charge and try me expeditiously — as advised by Mr Downer.”
He cites a warning by Downer to Mpshe in 2007 that the defence was likely to use “every legal device and stratagem” to prevent the matter going to trial. Downer went on to add that ironically this may have the effect of facilitating the eventual trial because many of the issues Zuma was likely to raise would have been settled by courts in the interim.
The former president’s battle to have the charges stayed vindicated Downer’s warning.
But with his latest application, Zuma is wagering that the trial court will find merit in arguments rejected by other benches and that he yet proves the second part of Downer’s prediction wrong.
What remains to be aired, he suggests, is what was really behind the alleged wrangling in the NPA that led the authority to disregard Downer’s advice that he be charged expeditiously. If both Downer and the DA suggested that Mpshe bowed to political pressure to withdraw the charges, neither ever disclosed the origin to the pressure.
He argues that if the implication was that it came from him it is false. If it came from elsewhere, this was greatly worrying to him as the accused and should at last be investigated.
“I would have been happy to have a commission of inquiry to conduct an in-depth investigation into the nature of the political influence that is referred to in Downer’s affidavit.”
The NPA has dismissed the application as a regurgitation of issues that had already been put to bed by various courts.
He faces 12 charges of corruption, two of fraud and one each of money-laundering and racketeering from allegedly taking a bribe from French arms manufacturer Thales through Shaik.