Supreme court of appeal denies Zuma leave to appeal Downer ruling

The supreme court of appeal (SCA) has dismissed former president Jacob Zuma’s direct application for leave to appeal the dismissal of his special plea challenging the standing of the prosecutor in his arms deal trial, ruling that it had no reasonable prospect of success.

This means that Zuma’s trial is now set to resume on 11 April with Advocate Billy Downer leading the prosecution.

Zuma’s special plea, in which he alleged that Downer is not impartial but has turned the case into a crusade, was termed a delaying tactic by the state, or as Advocate Wim Trengove, for the National Prosecuting Authority, put it, “Stalingrad season 27.”

The high court previously dealt with his claims of political influence when it dismissed his application for a permanent stay of prosecution in 2019. The SCA denied him leave to appeal that decision.

Here, Zuma tried to revive claims of political manoeuvring around his initial indictment but to no avail. He sought leave to appeal from the Pietermaritzburg high court after Judge Piet Koen dismissed the special plea, but was denied, prompting him to petition the supreme court directly.

In his court papers, Zuma averred that Koen erred by relying on the SCA’s judgments in Ndluli vs Wilken MO and Porritt and Another vs National Prosecuting Authority and Others as binding authority for dismissing the plea.

He also claimed that Koen misread the rationale for the ruling reached in Porritt, and that it did not, on the facts, serve as binding precedent in his plea because the applicants did not rely on section 106(1)(h) of the Criminal Procedure Act to argue for the removal of a prosecutors in the matter on the basis of bias. And, he contended, the Porritt ruling itself was wrong in giving a narrow interpretation to the term “title to prosecute”.

In his ruling in February, Koen authoritatively answered the question before the court, saying he was bound by it, even if he disagreed, which he did not

“That unanimous finding by the SCA disposed of the word ‘title’ having a wider meaning to include a lack of impartiality or a lack of independence, for whatever reason and specifically those complained of by Mr Zuma.”

In his two-part plea, Zuma had argued that should Downer be removed, he stood to be acquitted. 

In his approach to the appellate court, he sought to challenge the high court’s stance that an appeal, prior to the completion of the trial on the charges, should be allowed only if it would lead to the prompt resolution of the main issues between the parties.

That issue, Koen said, was the guilt or otherwise of Zuma.
The former head of state faces one count of racketeering, two counts of corruption, one count of money-laundering and 12 counts of fraud for allegedly taking bribes, via his former financial adviser Schabir Shaik, from French arms manufacturer Thales, which is accused number two in the matter.

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