Former South African President Jacob Zuma. (Photo by Themba Hadebe / POOL / AFP)
In a case that has raised fears for media freedom, Jacob Zuma’s counsel this week argued that state prosecutor Billy Downer became party to a crime when he learnt that a lawyer briefed by the state had given an affidavit enclosing a doctor’s note to a journalist.
Advocate Dali Mpofu was opposing a challenge by Downer to the private prosecution the former president brought against him last year for alleged breach of section 41 of the National Prosecuting Authority Act (NPA Act).
Zuma has accused Downer of leaking a letter by a military doctor, submitted in support of application for a postponement in his arms deal trial in August 2021, to Karyn Maughan of Media24.
Mpofu sought to persuade the Pietermaritzburg high court it did not matter that it was not Downer who sent Maughan the affidavit he had filed in response to Zuma’s application on 9 August, but Andrew Breitenbach SC.
Breitenbach at the time represented the state, specifically the KwaZulu-Natal directorate of public prosecutions, in defending a special plea raised by Zuma in terms of section 106(h) of the Criminal Procedure Act that Downer lacked standing to prosecute the former president because he was not sufficiently impartial.
He has filed an affidavit in which he took responsibility for giving the court papers to Maughan and made clear that he did not seek Downer’s permission to do so, but mentioned it to him later.
Geoff Budlender SC, for Downer, on Monday told the court: “That really is the end of the case.”
Mpofu disagreed, at length, in reply on Wednesday.
“Apart from putting Mr Breitenbach under the bus, that statement does not assist Mr Downer,” he said. “We say he is either a perpetrator, co-perpetrator or accomplice. It does not matter for current purposes which he is because we allege that he performed an act of association.”
He suggested Downer’s own affidavit saw him admit to the alleged crime.
Downer simply confirmed that he was informed by Breitenbach on 9 August that he had sent Maughan the papers, which had been sent to the then trial judge, Piet Koen. Because it was a public holiday, these were extended on condition that she did not publish anything regarding these until they had been stamped by the registrar’s office the following morning.
“That is a confession in simple English, when he had a duty, as we all know as lawyers,” Mpofu said. “His duty was to say: ‘What? Did you really do that?’ and to go to the authorities, those authorities are to be found in the NPA and the police. He had to go.”
Judge Thohozile Mapisa noted that Zuma’s legal team elected not to charge Breitenbach and asked Mpofu to explain the decision. Mpofu did not do so directly but indicated that he would be called as a witness.
Budlender, in reply, said it is plain that Breitenbach was not charged because it would have no effect on the arms deal trial. “Because it will not delay Mr Zuma’s prosecution. If Mr Breitenbach is prosecuted, he will be replaced by someone else.”
Zuma intends filing an application for Downer to be removed from the criminal trial which he has led since its inception, some 18 years ago, on the basis that he is being privately prosecuted for a crime.
This put the matter into perspective, Budlender said, as part of a strategy of delay Zuma has followed since 2007.
“And so this private prosecution is not only to create delay by itself, it is to create a foundation to be a springboard for further delay … And so this prosecution is not just an abuse by itself, it is an abuse which, in Mr Zuma’s counsel’s own words, is the foundation for a further abuse which is yet to come, which is an application to challenge Mr Downer’s position.”
Though Mpofu detained the court well beyond his allocated time, Budlender said he failed to address the argument that the private prosecution was an abuse of process. The charge against Downer was “fanciful”, he continued, because he was in no way involved in disclosing the court papers to the media.
Mpofu had told the court that Zuma’s motive could only be tested once the private prosecution proceeded in criminal court.
He made much of how giving the court papers to a member of the media amounted to disclosing confidential medical information because these included the letter from Brigadier General MZ Mdutiya.
He wrote, in reference to Zuma: “He is undergoing extensive medical evaluation and care as a result of his condition that needed an extensive emergency procedure that has been delayed for 18 months due to compounding legal matters and recent incarceration and cannot be delayed any further as it carries a significant risk to his life.”
Zuma’s legal team did not claim confidentiality when they attached the letter to their papers. Downer, in his affidavit at the time, said it advanced only vague generalities as cause for a postponement.
The letter was reprised by Koen in full in his judgment on 26 October dismissing the special plea on Downer’s standing to continue as the lead prosecutor in the criminal trial.
Steven Budlender SC, for Maughan, noted that Koen had found that because the doctor’s letter was vague, there was no basis for Zuma to claim a breach of confidentiality.
Mpofu had argued that the law prohibited the disclosure of any document in possession of a prosecutor without the permission of the national director of public prosecutions. It therefore did not matter that Zuma had not claimed confidentiality because the NPA Act did not contain any qualification in this regard.
“It is that simple. Any document, whether it is private or confidential or whatever.”
Neither did the law go into specificity regarding what happened thereafter, “publication, confidentiality or disclosure”, he said.
The mere, sufficient fact was that Maughan had received the affidavit, he said. It would not have mattered whether she left it lying next to her laptop without writing.
Steven Budlender countered, in an argument critical for the media who report on court proceedings, that the prohibition applied only to confidential documents. All court documents are, as a rule with clear exceptions, public documents.
Mpofu’s reading of section 41(6) of the law would have the absurd effect of rendering it unlawful for a prosecutor to share a copy of a court ruling with a journalist.
But this was wrong because the statute had to be read in context and subject to section 39(2) of the Constitution, and in the case of the NPA Act, the appellate court had settled the question, in favour of Maughan and the media in general.
“The section is not about any piece of paper that happens to be sitting in Mr Downer’s briefcase,” Budlender said.
“It is about a document that has not been disclosed to the public and has some air of confidentiality, and that is obviously what it is about because the SCA told us in its decision in Maharaj v M&G.
“The court had occasion to consider exactly how one dealt with section 41(6) of the NPA Act,” he said.
In that case, which also involved Zuma, the court faulted the national director of public prosecution’s “rigid and inflexible adherence to a policy of non-disclosure” as blind to the fact that in that the documents in question had already been posted in court proceedings, placing these in the public domain.
The SCA then referred to case law which had established that “a judicial proceeding is a public event and information on the public record may be broadcast despite its highly sensitive nature”.
The animating principle for this decision was that “all court records are by default public documents that are open to public scrutiny at all times, while there may be situations justifying a departure from that default position, any departure is an exception and must be justified”.
“Now that is the end of the case,” Budlender said, adding that it was not merely weak but “a mirage”.
Earlier, he told the court that it was clear that Zuma’s aim was to intimidate Maughan and stop her reporting on his legal travails. Advocate Kate Hofmeyr, for the Helen Suzman Foundation, said by charging Downer, Zuma was implicating “prosecutorial independence” in a case brought for political motives.
His special plea on Downer’s standing was an attempt to revive allegations that were already dismissed by the high court when it denied him a permanent stay of prosecution on the ams deal charges in 2019. Days before Koen dismissed the plea, he then went to the police to open a criminal case from which he launched the private prosecution after the NPA declined to pursue charges.