Former president Jacob Zuma. (Mlungisi Louw/Getty Images)
The Pietermaritzburg high court on Wednesday struck Jacob Zuma’s private prosecution of state prosecutor Billy Downer and news reporter Karyn Maughan off the roll, while the former president pursues his bid to keep the case alive by appealing its dismissal to the apex court.
Judge Nkosinathi Chili, in a brief ruling, said Zuma would suffer no prejudice if the matter is removed from the roll “pending finalisation of his appeal against the order of the full court in this division”.
The high court in June 2023 set aside Zuma’s private prosecution of Downer and Maughan, who writes for News24, as an abuse of process.
Zuma had accused Downer, the prosecutor in his arms deal fraud and corruption case, of breaching the National Prosecuting Authority Act. He claimed that Downer had leaked confidential medical information in the form of a letter from a military doctor, filed by lawyers for the former president in that trial in August 2021, to Maughan.
The letter cryptically stated that Zuma needed treatment for an undisclosed ailment. His lawyers did not claim confidentiality when they submitted it to court, hence it became part of the public record. It was moreover not Downer but counsel who gave the document to Maughan and other media, as per accepted practice.
In setting aside the summons Zuma had served on Downer and Maughan, the high court held the former president had come to court “with unclean hands”.
It said it was clear that the private prosecution was initiated as a “precursor” to an eventual application for the removal of the prosecutor who has pursued the arms deal charges for nearly two decades.
When Zuma filed for leave to appeal the ruling, both Downer and Maughan successfully applied to the high court in terms of section 18 of the Superior Court Act for the order setting aside summons to remain in force pending the outcome of his appeal against the main judgment.
He sought to challenge this ruling in August last year in the supreme court of appeal (SCA), but it agreed with the high court and held that his appeal on the enforcement order too was in itself an abuse of process and part of the “Stalingrad” litigation strategy Zuma has pursued to delay his arms deal corruption trial.
“In the circumstances, to permit the continuation of a private prosecution pending an appeal as to the lawfulness of that prosecution likely constitutes a direct violation of the constitutional rights of the respondents,” the court said.
It dismissed Zuma’s application with costs, and described his accusation that the high court was biased when it ruled against him as scandalous.
“It is a mere allegation, without any attempt to produce any evidence to justify it. It is improper,” the SCA said.
On 7 December last year, It dismissed Zuma’s application for leave to appeal the setting aside of the private prosecution by the high court. In January he brought an application to the president of the SCA for that decision to be referred back for reconsideration but this was dismissed.
Zuma intends to seek leave to appeal the SCA ruling in the constitutional court and his deadline to do so is nigh.
The constitutional court’s earlier dismissal, on 20 February, of his application for leave to appeal against the SCA’s dismissal of his appeal against the enforcement order in terms of section 18(4) of the Superior Courts Act, means that it is final.
Chili’s ruling follows after counsel for the National Prosecuting Authority and for Maughan asked the court to strike the case off the roll in light of the fact that the setting aside of summons therefore remains in force regardless of Zuma’s further attempts at overturning the June 2023 ruling by the high court.
“Such removal is without prejudice to the rights of Mr Zuma, in terms of section 11 subsection 1 of the Criminal Procedure Act 51 of 1977,” the judge said.
The practical effect of the decision is that Downer and Maughan will no longer be required to keep presenting themselves to court while Zuma exercises his remaining appeal options. They are only directed to do so in the event that the high court’s ruling of June last year is overturned.
Chili in March dismissed an application by Zuma to have Downer removed as the prosecutor in the arms deal case.
He said he was not persuaded by Zuma’s argument that allowing Downer to lead the prosecution would violate his fair trial rights. It was his second failed attempt to disqualify the seasoned prosecutor from leading the state’s case.
In the first, he had entered a special plea entered in 2021 in terms of section 106 (1)(h) of the Criminal Procedure Act (CPA), pleading that Downer had impartiality and therefore lacked title to prosecute. It was dismissed by Judge Piet Koen and Zuma’s attempts to appeal came to nought.
He is now attempting to appeal Chili’s March ruling.
The judge has set down the arms deal matter for a case management meeting in May.