/ 21 October 2021

Zuma tries to turn his courtroom attack on Downer into a criminal case

Safrica Politics Corruption Trial
Former South African President Jacob Zuma. (Photo by Themba Hadebe / POOL / AFP)

As threatened, former president Jacob Zuma on Thursday pressed criminal charges against state prosecutor Billy Downer for allegedly leaking his medical records recently, but also for allowing meddling, including by foreign intelligence, in his arms-deal corruption case. 

Zuma caused a small commotion at Pietermaritzburg’s Jabu Ndlovu police station as he arrived, with his daughter Duduzile in tow, to give a statement to the police, followed by television crews.

His complaint stems in part from the media obtaining access to an affidavit filed by Downer in August that referred to a medical certificate issued by a military doctor, stating that Zuma needed urgent treatment for a medical trauma.

But it attempts to go much further and turn Zuma’s special plea for the removal of Downer in terms of section 106 (1) (h) of the Criminal Procedure Act, and ultimately his acquittal on corruption charges under section 104 of the same act, into a criminal complaint.

Here he states: “It is clear that there has been criminal interference in the case by persons not authorised to conduct such investigations which include criminal involvement of foreign spies and illegal surveillance.”

In short, Zuma is attempting to derail the trial by laying criminal charges based on allegations unlikely to result in his acquittal, The chances of the special plea succeeding have always been dim, given that it relies for the most part on argument heard and definitively rejected in his applications for a permanent stay of prosecution. 

Regarding the medical certificate, Zuma’s defence team in September made much of Downer allowing one of the counsel for the National Prosecuting Authority (NPA), advocate Andrew Breitenbach, to send the affidavit to a journalist after it was sent to the judge’s registrar. This happened on a public holiday, and a media report referencing the letter was published the next morning, apparently after Downer’s signed affidavit was formally filed.

The state counters that once the affidavit was filed it became a public document.

The certificate, signed by Brigadier General MZ Mdutywa, stated that Zuma’s various legal processes and recent imprisonment for contempt of court delayed much-needed, but unnamed treatment that could not be postponed any longer without putting his life at risk.

It was filed in August in support of an application by Zuma’s legal team for a postponement in his corruption trial, some weeks before he was released from prison on medical parole, cutting short his incarceration for defying a Constitutional Court order that he testify before the Zondo commission of inquiry into state capture.

“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,” Mdutywa wrote.

The certificate gave no further detail, and what afflicts Zuma remains a mystery. 

It was made an order of the court that the state could appoint a medical expert of its own choosing to evaluate a submission by military doctors that he was not fit to stand trial. The state’s team of experts concluded that he was, in fact, fit to stand trial.

The state’s lawyers, who are opposing Zuma’s special plea, signed a confidentiality agreement to keep all details of the medical records secret.

It has not been alleged by Zuma that this has been breached.

Instead, the charges relate to events in August when Mdutywa’s letter was sent to Zuma’s lawyers and to the NPA, in support of a request for postponement. The letter was discussed between the legal teams, an agreement was reached on the terms of a postponement, and affidavits were filed to Judge Piet Koen’s registrar referencing the letter.

It thus became part of the court record. However, at the last court date in September, Zuma’s lead counsel, Dali Mpofu SC, raised the fact that the letter made its way into the press as yet another misstep on Downer’s part.

On the same day, Mpofu shifted argument away from the health of his client — who had recently been released from the Estcourt correctional centre on medical parole, but was not present at court — because, he said, he needed to remain close to his lawyers in Gauteng.

Instead Mpofu proceeded to argue for Downer’s removal. Koen will rule on this on Tuesday next week. In the unlikely event that he grants the application with regards to Downer, the court could then allow Zuma’s lawyers to lead oral evidence on the second part of the plea, namely that he be acquitted because the entire process has been so politically tainted that the NPA could not charge him. 

But the plea has always been seen as an attempt by Zuma to play for time and force another trial within a trial on charges that have dogged him since 2005. Hence, laying charges read as a pre-emptive strike against failure.

Zuma was initially meant to go on trial in 2006 and lost a court bid to have the charges withdrawn. The charges were set aside in 2009 by the then head of the NPA, Mokotedi Mpshe, and reinstated in 2018, mere months after Zuma’s forced resignation.

He faces 16 charges of fraud, corruption, racketeering and money-laundering stemming from the 1999 strategic arms-procurement programme to overhaul post-apartheid South Africa’s military hardware for allegedly taking bribes for furthering the aims of French arms manufacturer Thales.