/ 9 December 2022

Concourt denies Zuma leave to appeal Downer ruling

(Wikus de Wet/Pool/AFP)
In his latest bid for the removal of Billy Downer from the arms deal trial, the former president claims the prosecutor fuelled the narrative that he wants to delay the case (Wikus de Wet/Pool/AFP)

The constitutional court has denied former president Jacob Zuma leave to appeal last year’s high court high court ruling dismissing his special plea that advocate Billy Downer lacked the legal standing to lead his prosecution on arms deal charges.

The apex court dismissed the application as “it bears no reasonable prospects of success”.

The decision was communicated on Thursday, while the Pietermaritzburg high court was hearing applications by the Helen Suzman Foundation, the South African National Editors’ Forum and other rights groups to be joined as an amicus curiae in Zuma’s private prosecution of Downer and News24 journalist Karyn Maughan.

Advocate Kate Hofmeyr, for the Helen Suzman Foundation, told the court Zuma was abusing a court process for political ends by attempting to prosecute the state advocate who is prosecuting him for corruption, fraud, money laundering and racketeering.

He accuses Downer and Maughan of disclosing documents in possession of the National Prosecuting Authority without the permission of the national director of public prosecutions. At issue is a copy of an affidavit filed by Downer in response to an application from Zuma for a postponement in his corruption trial. 

Attached to the affidavit was a letter from a military doctor stating that the former president needed urgent treatment for an undisclosed ailment. But Zuma’s legal team had attached it to his own affidavit, without claiming confidentiality, and hence it became part of the public court record.

Legal opinion is that the case is as doomed as the special plea was.

Zuma had argued, in terms of section 106 (1)(h) of the Criminal Procedure Act, that Downer lacked title to prosecute him because he had abandoned impartiality. His lawyers contended that if the court agreed with this, he then qualified for acquittal in terms of section 106(4) of the act.

Dismissing the plea, judge Piet Koen said legal precedent was clear that complaints about lack of impartiality, whatever the grounds, do not affect the title to prosecute for the purposes of section 106 (1)(h). 

Precedent was equally fatal to part two of Zuma’s plea and his argument that should Downer be removed, acquittal must follow because the National Prosecuting Authority as a whole was incompetent to pursue the graft charges against him.

In February, Koen said there was no reasonable prospect that Zuma would succeed on appeal and the appellate court concurred.

In April, Zuma petitioned the president of the supreme court of appeal — Justice Mandisa Maya at the time — to reconsider the decision. She dismissed the application and he tried, unsuccessfully, to challenge her decision in the apex court.

The special plea and the unsuccessful attempts to appeal the court’s decision caused extensive delays in the trial, which is now due to resume on 30 January.