Former South African President Jacob Zuma. (Photo by Themba Hadebe / POOL / AFP)
Jacob Zuma’s legal counsel on Thursday tried to persuade the Pietermaritzburg high court that the notion that the former president was deploying Stalingrad tactics to delay his arms deal trial was a mere media narrative fuelled by the National Prosecuting Authority (NPA).
This was countered by Geoff Budlender SC, for the NPA, who said the fact that Zuma was waging a Stalingrad defence by delaying the trial through serial, meritless interim applications had been acknowledged by the courts in a number of rulings.
Advocate Dali Mpofu, for Zuma, made the claim as he was arguing a fresh application for the removal of Billy Downer as the state prosecutor in the arms deal corruption case, which first came before court in June 2005.
The first attempt to have Downer disqualified, a special plea brought in terms of section 106(h) of the Criminal Procedure Act, was dismissed by the court in 2022.
After the Supreme Court of Appeal (SCA) denied Zuma leave to appeal that ruling, he laid criminal charges against Downer for allegedly leaking his medical information to the media.
He did so to lay the ground for a private prosecution against Downer and journalist Karyn Maughan for breach of the NPA Act.
It was struck down by the high court as an abuse of process, but Zuma is now using his ongoing bid to appeal that ruling as cause for Downer’s removal, arguing that he cannot serve as the prosecutor in the corruption trial while facing a criminal charge brought by the accused. On Thursday, Mpofu tried to prevent Downer from addressing the court on this basis.
And he persisted in accusing the prosecutor of leaking a letter from a military doctor stating that Zuma needed treatment for an undisclosed health condition to Maughan, though it is now a matter of record that it was sent to her by counsel for the NPA.
The thrust of the argument is that Downer had flouted the law by disclosing a document in possession of the NPA without the permission of the national director of public prosecutions.
The high court held that this was spurious. The letter was attached to an affidavit filed by Downer in response to an application from Zuma for a postponement in his corruption trial. It was also attached to Zuma’s own affidavit to motivate for the postponement, without claiming confidentiality, and had become part of the public record when Maughan reported on it.
But Mpofu has, in heads of argument, maintained that Downer was complicit in a breach and argued in court that this was proof of the prosecutor’s bias against his client, along the way accusing him of using the press to turn public sentiment against the former president.
He said it was enshrined in law that prosecutors were not only obliged to perform their work without fear or favour they must carry out functions impartially and must avoid taking decisions or involving themselves in a matter where a conflict exists or might exist.
They must furthermore “take into consideration the public interest as distinct from the media or partisan interests and concerns, however vociferously these may be presented”.
Downer did not meet these standards as set out in the NPA Act, Mpofu charged.
“They must blind themselves to media hype and media theories, rather than fuelling them, because that is exactly what happened here,” he said.
“The reason Mr Zuma’s medical information was leaked was not just for the sake of it, it was to fuel the media frenzy, that is ‘oh here we go again, another, he is faking his illness, Stalingrad, Stalingrad, and all that’.”
Mpofu pleaded that it was “completely false” to blame Zuma for delays in a trial that finally began in early 2021 but where evidence is yet to be led. It has stalled because of the defence’s applications against Downer, starting with the special plea brought in May that year.
But Mpofu said his client was simply asserting his rights and in doing so unfairly suffering the insult of the Stalingrad epithet while Downer escaped criticism for exercising his in defending himself, though this too was delaying the trial.
In fact, it was not the media but Zuma’s late legal counsel, Kemp J Kemp SC, who first used the term Stalingrad to describe the approach he took in conducting his client’s defence after filing an urgent application in 2007 to stop the retrieval of documents from Mauritius that might relate to arms deal corruption.
“This is not like a fight between two champ fighters. This is more like Stalingrad. It’s burning house to burning house,” Kemp said in response to a question from the bench.
Downer and counsel for the NPA have argued that the repeated attempts to disqualify the veteran prosecutor from leading the trial was a continuation of that litigation strategy, and the SCA has concurred.
The appellate court in October dismissed Zuma’s application for leave to appeal a high court order that prevented Zuma from pursuing the private prosecution while seeking leave to appeal its ruling striking it down as abuse of process.
Budlender said that ruling was dispositive of much of Zuma’s argument in the present case, and had settled the debate as to whether the term Stalingrad applied to his defence strategy.
The SCA said the facts showed that the high court assessment of the private prosecution as an abuse of process was correct. A history of the case showed, it further said, that “on any reckoning, the scale of litigation, which is likely unprecedented in the South African courts, justifiably attracts the epithet ‘Stalingrad’”.
The appellate court’s finding that the complaint against Downer was hopeless was binding on the high court hearing the present application for his removal, Budlender said.
The application was therefore an attempt to make a fool of the law and of the courts.
“He institutes a private prosecution which is an unlawful abuse of the process of court, that is the findings of the court, and then he says that the courts must now, because of his unlawful abuse, remove Mr Downer as the prosecutor.
“It is entirely upside down. If there were ever a case of dirty hands, this is it.
“To put it differently, you can’t initiate an abuse for an unlawful purpose and then say that the abuse entitles you to achieve the purpose you were going after in the first place.”
In its October ruling, the SCA had in relation to Zuma’s bid to pursue his private prosecution of Maughan, stressed that freedom of the press and the principle of open justice are closely interrelated.
“There is a necessary interdependence between the court and the press,” the court said.
“It has thus come to be accepted that the media, reporting accurately and fairly on legal proceedings and judgments, make an invaluable contribution to public confidence in the judiciary and, thus, to the rule of law itself.”
In papers filed in support of his application for Downer’s removal, Zuma launched an extraordinary attack on Maughan by insinuating that only she was given access to the papers — this is not true — because she could be relied upon to portray his application for a postponement in a negative light.
“Can there be any real doubt that Ms Maughan was being engaged in order to perpetuate the dominant media narrative that Mr Zuma was taking his illness to prove the ‘so-called Stalingrad tactic’?”