Former president Jacob Zuma in court.
After former president Jacob Zuma served summons on Billy Downer to initiate a private prosecution for allegedly leaking his medical details, the National Prosecuting Authority (NPA) says it stands by its veteran prosecutor and expects more of the same behaviour as it enrols more state capture cases.
Zuma is endeavouring to prosecute Downer, alongside News24 journalist Karyn Maughan, for breaches of the National Prosecuting Authority Act, and served summons on Monday after the NPA declined to pursue charges.
“The NPA and its leadership fully support Advocate Downer as we believe that these charges are without merit. They are only designed to intimidate him in the prosecution of Mr Zuma, and to further delay the trial. The private prosecution amounts to abuse of process,” it said in a statement.
“Adv Downer will continue to lead the NPA’s prosecution team in the Zuma/Thales trial. He has the NPA leadership’s full confidence. His track record of prosecutorial integrity and professionalism speaks for itself.”
Zuma is charging that Downer breached section 46(1)(a) and (b), as well as section 47 of the Act by disclosing the contents of a document without authorisation, in this case that of national director of public prosecutions Shamila Batohi.
The document in question is a note from military doctor Brigadier Mcebisi Mdutywa informing the prosecution and prison authorities that Zuma had suffered a medical trauma for which he needed emergency, life-saving treatment.
Zuma was at the time early into serving a 15-month sentence for contempt of court for defying an order that he cooperate with the Zondo commission of inquiry into state capture.
The note, which did not divulge the nature of the injury he had incurred, was filed in August 2021 in the course of another court case where Zuma is defending fraud, corruption, money-laundering and racketeering charges in the long-running arms deal saga.
Zuma’s counsel submitted it in support of their request for a postponement, a few weeks before he was unlawfully released on medical parole, cutting short his contempt sentence.
As such, it became part of the public record.
But Zuma and his lawyers seized on it after the Pietermaritzburg high court dismissed his special plea, filed in terms of the Criminal Procedure Act, to the effect that Downer lacked title to prosecute him because he had allegedly left behind the requisite impartiality in pursuit of the charges.
The plea was twofold, with Zuma arguing that should he succeed with the first leg, in terms of section 106(1)(h) of the Act, he was entitled to acquittal in terms of section 106(4) of the same Act.
The plea was dismissed by trial judge Piet Koen in October last year, and leave to appeal was denied in February 2022. Zuma then, in March, petitioned the president of the supreme court of appeal and when this failed, signalled that he would turn to the constitutional court.
His arguments have been dismissed by counsel for the NPA as a desperate last grasp, in another guise, at a permanent stay of prosecution. The high court denied him such in 2019, after he aired most of the arguments against Downer which he sought to revive in the special plea.
If Zuma’s pursuit of Downer has been dismissed by counsel for the state as blatant “Stalingrad” tactics, it has also, arguably as intended, bought him time. Earlier this month Koen postponed the arms deal case until mid-October to allow time for the constitutional court to pronounce on Zuma’s approach.
The NPA said it was compelled to allow the law to take its course but also to protect its prosecutors from unjustified attacks and intimidation.
“We expect attacks to intensify as the wheels of justice begin to gain momentum in the context of accountability for state capture,” the authority said.
“We must and will fiercely resist this. Prosecutors need to act without fear or favour as they deliver on their constitutional mandate to ensure accountability for crime in our country. The people of our country, all victims of state capture, expect nothing less of members of the National Prosecuting Authority.”
It is on record as promising to enrol nine more state capture matters this year.