Zuma cries foul over Downer in court, again

The Pietermaritzburg high court’s dismissal of Jacob Zuma’s bid to have Billy Downer removed as the prosecutor in his arms deal trial was further proof that he was routinely prejudiced by the courts, the former president’s counsel argued on Monday.

Advocate Dali Mpofu SC said Zuma was entitled to have the ruling reviewed by a higher court and applying the procedural rule, raised by the state, that an appeal could only follow if he were convicted and sentenced by the trial court would be a constitutional breach.

Judge Piet Koen on October 26 last year dismissed Zuma’s special plea, in terms of section 106 (1) (h) of the Criminal Procedure Act, that Downer lacked title to prosecute because his handling of the matter over almost two decades showed he was not sufficiently impartial.

Koen held that he was bound by case law on the matter, where the supreme court of appeal (SCA) found that in the South African legal system an adversarial approach did not rob a prosecutor of standing.

The plea was twofold, with Zuma arguing that should the first part succeed, he be entitled to summary acquittal in terms of section 106 (4) of the same Act. Koen found that since the second flowed from the first, there was little need to dwell on it.

Days before his ruling was handed down, Zuma signalled that he plans to institute a private prosecution against Downer for allegedly leaking information to the media. He laid the groundwork for this by filing charges with the police in Pietermaritzburg on October 21.

The National Prosecuting Authority (NPA) denies the criminal charges and argues that these would have no bearing on whether the court finds Zuma guilty of arms-deal corruption, or affect its decision on the special plea.

Advocate Andrew Breitenbach SC, for the NPA, submitted that a criminal trial in the high court is regulated by the Criminal Procedure Act, which stipulates in section 316 (1)(a) that an accused convicted by the court may apply for leave to appeal against the conviction or any other ruling of the court.

Mpofu’s call for the word “convicted” to be interpreted sufficiently widely to include Koen’s refusal to acquit Zuma in terms of section 106 (4) was misplaced, Breitenbach said. 

“If such a special plea is dismissed and the accused has pleaded not guilty in terms of section 106(1)(b) [as the first accused has done here], the accused is not convicted. On the contrary, the matter will proceed to trial on the accused’s plea of not guilty,” Breitenbach said. 

“At the end of the trial, the accused will either be acquitted or convicted. It follows that the dismissal of such a special plea alone, does not entail the conviction of the accused.”

If the Superior Courts Act supplemented this provision by pointing to instances in which an appeal could be lodged prior to conviction, nothing in the context indicated that this pertained to instances where a section 106 (1) (h) application had failed.

“Indeed, the context points the other way,” he argued.

Here, Mpofu countered that it would be a travesty to make an elderly accused endure a criminal trial if there were any prospect that an appeal court would find for him on an interlocutory application that would have resulted in acquittal.

He was building on an emotive argument, advanced at the outset in relation to a perceived procedural anomaly involving the filing of affidavits. Though that issue was rapidly explained by Koen and accepted by all parties, Mpofu seized on it to claim that the law was often brought to bear on his client in a unique and unfair fashion.

“The procedure was in breach of section 9 (1) of the Constitution,” he said.

“When we talk about section 9 of the Constitution we all talk about the fashionable section 9(2) that talks about racial discrimination and so on and we forget section 9(1) of the Constitution which says that everyone is equal before the law and is entitled to the protection of the law, to equal protection.”

“We have to, for once, just step into his shoes,” he continued, claiming that an example was made of Zuma to show that all were equal before the law before embarking on an overview of his recent legal woes, including his failed attempt to secure a rescission of sentence for contempt of court.

Mpofu said though Koen and the state were of the view that Zuma’s reservations relating to fair-trial rights could be dealt with during the trial, there was precedent for sparing an accused the strain, expense and restrictions of a criminal trial “by allowing an appeal to be pursued out of the ordinary sequence so as to obviate a trial or to substantially shorten it”.

“Now all of that is cast aside when it comes to former president Zuma. No, he must be put to the extreme and the expense and the personal restrictions, an old person, must sit here, go through a trial which might be of academic use because he must only complain about advocate Downer six months, or 12 months down the line … How can that be justice?” he said.

“The law seems to be so over-eager or speedy to deal summarily with him.”

Mpofu argued that the relevant case law regarding section 106 applications, Porritt and Another v National Prosecuting Authority, would never have reached the SCA if a narrow reading of the Criminal Procedure Act had been applied as to whether an appeal could be entertained prior to conviction.

Too much emphasis was put on the fact that the court was, in that instance, seized with the standard for removing a prosecutor, as opposed to determining the issue of title to prosecute. Therefore if section 316 did not preclude an appeal in that case, neither should it in Zuma’s.

“There can be no logical reason why, in principle, the treatment of the same or a similar question should be different simply because the court is at present dealing with the title to prosecute and not, strictly speaking, his removal. That is a distinction without a difference,” he said.

The Porritt case, incidentally, rivals Zuma’s corruption case in terms of successive applications by the accused to delay the trial, a legal strategy that has led counsel for the NPA to quip that the application for Downer’s removal could be titled “Stalingrad season 27”.

Mpofu also said his client’s hopes of an eventual acquittal were prejudiced because the court did not allow oral argument on the alleged prosecutorial misconduct — and wider political wrangling at the NPA around Zuma’s indictment — that motivated the plea. It was a violation of Zuma’s right to a fair trial, he said.

Koen had erred here, he said, in noting that Zuma had not formally asked that evidence be adduced, while in terms of the law this need not have been made explicit. 

He said the judge erred, too, in following the narrow interpretation of the term “title to prosecute” in the Act, laid down by the SCA in the Porritt case.

Koen had noted in his ruling that he was bound by this precedent.

However, Mpofu hinted on this point and various others in his pleadings that Zuma would not let the appellate court have the last word on the matter but take it all the way to the constitutional court if need be.

“The narrow reading of [section] 104 negates logic and the interest of justice, if we understand what justice really means.”

But Breitenbach said Zuma’s application sought to upend the principle of precedent. If there was scope within the law to allow a trial court to defer to the SCA on a principle that has not been decided in law, this did not apply. 

“In this instance we are dealing with a question of the law which the SCA has decided in Porritt’s case,” he said.

Koen said he would rule on the application on 16 February.

Monday 11 April has been set down for the commencement of the trial where Zuma faces 12 charges of fraud, two of corruption and one each of money-laundering and racketeering for allegedly accepting bribes from accused number two, French arms manufacturer Thales. Zuma is accused of receiving 791 payments with a sum total of R4.1 million from his former financial advisor Schabir Shaik to help Thales.

The allegations against Downer and his colleagues have been aired before the courts before and Zuma was denied a permanent stay of prosecution by the SCA in 2019. Should Koen refuse him leave to appeal in this instance, he could still petition the appeal court in Bloemfontein directly.

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