HIGH COURT HEARING
NPA tears into Zuma’s ‘dressed-up’ plea to have prosecutor removed from Arms Deal case
Former president Jacob Zuma wants prosecutor Billy Downer removed from his Arms Deal corruption case, but the NPA dismissed his arguments on Tuesday, describing them as a dressed-up complaint about a matter that has been ‘litigated to death’.
It took advocate Wim Trengove SC less than an hour on Tuesday afternoon to casually rip through hours of “regurgitated” arguments made by two senior counsel for former president Jacob Zuma as the Pietermaritzburg High Court heard the reasons for and against Zuma’s special plea application.
Prior to Trengove eviscerating the arguments on behalf of the State, Advocate Dali Mpofu SC spent close on three hours outlining why senior State prosecutor Billy Downer – and the National Prosecuting Authority (NPA) – had no title to prosecute Zuma’s Arms Deal corruption trial.
Mpofu’s arguments were followed by those of advocate Thabani Masuku, who argued for more than an hour on behalf of Zuma.
The former president is seeking to have Downer removed from the trial in terms of Section 106 (1)(h) of the Criminal Procedure Act, and contends that should he be successful, he will be entitled to an immediate acquittal in terms of Section 106(4).
Zuma has accused Downer of lacking “independence and impartiality” and therefore being unable to conduct a “lawful prosecution” that will uphold his constitutional rights to a fair trial.
Trengove immediately started his argument by mentioning the invective from Zuma’s advocates.
“May I say at the outset how struck I was at the extraordinary fest of attacks on Mr Downer today – entirely unjustified.”
The attacks were frequently based on incomplete or a one-sided selection of facts, he said, “with an added dollop of hyperbole and insult, to malign Mr Downer for utterly innocent conduct”.
He used as an example Mpofu saying that a prosecutor must be “dispassionate” when performing his or her duties. Mpofu had said Downer did not display this quality because he had burst into tears when he heard about the so-called Spy Tapes during a presentation given by prosecutor Willie Hofmeyr at an NPA meeting.
“What a distortion. What a distortion of the facts,” emphasised Trengove.
“The facts are that Mr Downer attended the seminar in which Mr Hofmeyr revealed the discovery of the Spy Tapes, and the misconduct that the Spy Tapes revealed.
“And what appalled Mr Downer was this revelation of the misconduct by the leadership of the NPA, who had illegally and unlawfully conspired to interfere with his prosecution. It was his indignity at the injustice of this unlawful conduct that moved him to tears.
“[Downer] should be applauded. He should be given a medal for [his reaction]. To suggest that that was a symptom of a prosecutor unfit to prosecute, because he is lacking in dispassion, is an appalling suggestion. Mr Downer is owed an apology for something so unjustified.”
The former president has, since he was first implicated in the Arms Deal saga almost two decades ago, maintained that he is a victim of political interference and persecution involving illicit intelligence gathering – including the intercepted conversations known as the Spy Tapes – to ensure that he was politically maligned.
Of Masuku’s arguments, Trengove said he had “reargued the whole Spy Tapes saga”.
Masuku had attempted to place Downer at the heart of the prosecution of Zuma, claiming he had the ear of all the National Directors of Public Prosecutions (NDPPs) leading up to the withdrawal of the case against Zuma in April 2009 by then-NDPP Mokotedi Mpshe.
Masuku argued that Downer’s ability to prosecute Zuma was compromised as he was a key witness to the “many criminal acts committed within the NPA” and did “nothing about it”.
Masuku relied heavily on the affidavit filed by Hofmeyr, a former deputy NDPP, in a North Gauteng High Court matter brought by the Democratic Alliance (DA), which led to Mpshe’s decision being overturned in April 2016. The Supreme Court of Appeal (SCA) upheld the decision.
Hofmeyr’s affidavit stated that former NDPP Bulelani Ngcuka, Leonard McCarthy – who was the head of the NPA’s since shuttered investigations arm known as the Scorpions – and former intelligence minister Ronnie Kasrils were part of a cabal that were using their positions and influence in a bid to politically support the then president, Thabo Mbeki, and target Zuma.
Masuku said that because of Downer’s proximity to at least Ngcuka and McCarthy, he should have known what was happening. Downer has stated that the first time he became aware of such allegations was when he read Hofmeyr’s affidavit.
“When it was Ngcuka, Mr Downer had some things to say about the prosecution. When it was [NDPP Vusi] Pikoli, Downer had things to say about the prosecution, and in fact he was the one who advised Mr Pikoli to prosecute,” said Masuku.
“Mr Downer was also involved when it was Mpshe. So, the story is set out in Mr Hofmeyr’s affidavit… the evidence is contained in there… and Mr Downer would have known about all the issues raised.
“What it tells you is this prosecution is criminal and Mr Downer is a witness to that. Mr Downer is a witness of everything set out in Hofmeyr’s and Mpshe’s affidavit. That is how simple this matter should have been. That is the complete answer as to whether Mr Downer has title to prosecute this case.”
He repeated the claim that because Downer filed an affidavit that effectively supported the DA’s case against the 2009 decision, he had entered the political arena.
“[Downer] has been cautioning all the NDPPs that have ever dealt with the Zuma case to not consider political factors and stick to the evidence. He is a witness. As a prosecutor, at the level where he is, he was overruled by more senior people [Mpshe and Hofmeyr], whose ethics we cannot doubt.”
Judge Piet Koen quickly jumped in at this point.
“No, no, no, no. They [Mpshe and Hofmeyr] came in for a drumming in the SCA. In fact, in the SCA, the NPA counsel conceded that the decision [to withdraw charges against Zuma] couldn’t be sustained. There may be a difference of opinion on whether there should be a prosecution or not, but essentially [Downer] was vindicated,” said the judge.
Masuku replied: “This is the problem – he was vindicated in evidence that shows there was criminal misconduct within the NPA, which he has been a witness to. This is why the plea is accusing him of having known of many criminal acts committed within the NPA and having done nothing about it.”
Masuku said that in the absence of Downer raising a query in the NPA, he had to wait for a political party to offer that information to raise the case.
But Koen retorted: “He disagreed with what his superiors were doing and he verbalised it. What should he have done, Mr Masuku?”
“He should have raised the issue with his bosses,” replied Masuku, adding that Downer had not used the “internal methods of the NPA to test the integrity of a decision that had been taken by the NPA”.
Koen pointed out that in none of the papers filed by Zuma’s legal team did they ever raise the question as to whether Downer did in fact use internal remedies to voice his displeasure.
Masuku said that even if Downer did not know about the wrongdoing when it occurred, he should have acted on it when he became aware of it in 2015, but had failed to do so.
“He doesn’t want the NPA to be held to account on how it has handled this case. When he became aware of the criminality he should have investigated it.”
Addressing Masuku’s arguments, Trengove said again that Downer should be “given a medal” for standing up for truth and justice. “He stood up to his bosses, every time. To suggest that reflects on his capacity and integrity as a prosecutor is appalling.”
Trengove also tore apart Mpofu saying that the State had misunderstood the special plea.
Mpofu said earlier that Trengove had “mistakenly” said in his heads of argument that Zuma was arguing for the removal of the prosecutor.
“We are here to say this prosecutor lacks title, and that [Zuma] should be acquitted,” Mpofu told Judge Koen.
But on page one of the former president’s plea, said Trengove, Zuma states: “Mr Downer SC should be removed from being the prosecutor in this case, as he has no title to prosecute” and “There are facts and circumstances that give me a reasonable apprehension that Mr Downer has conducted himself in this case in a manner which lacks independent and impartiality.”
Trengove said the special plea was really “a complaint about an unfair trial dressed up as a section 106 (1) (h) plea.
“And why is it dressed up? Because the unfair trial complaint has been run, and litigated, and lost. It was lost in the full Bench judgment [when Zuma sought a permanent stay of prosecution], it was lost when Mr Zuma abandoned his appeal to the Constitutional Court, that was when this true complaint was lost.”
Trengove said Koen should decline to redetermine all of these issues, which had been “litigated to death”.
Addressing the affidavit Downer deposed in the Spy Tapes case, Trengove said Zuma was trying to portray the veteran prosecutor as being partisan, and siding with the DA, “but that is again a complete disregard of the facts”.
“The facts are that Mr Hofmeyr asked Mr Downer to depose an affidavit, and it was filed by the State attorney on behalf of the NPA. Downer deposed the affidavit to show his truthful account of the facts. It was an honest account, and it was conceded by the NPA and Mr Zuma to be correct. To suggest that was a black mark on his career was quite wrong.”
Trengove then addressed Downer’s alleged “leaks” to the media.
According to Zuma, Downer had leaked information to investigative journalist Sam Sole. This was unlawful disclosure, he had contended in a prior affidavit, and was a contravention of sections of the National Prosecuting Act, and in contravention of the United Nations guidelines on the role of prosecutors.
Addressing this, Trengove said: “There is no evidence that Downer ever released confidential information about this case. To suggest he somehow policed confidential information is devoid of evidence.”
Trengove also addressed Downer’s “insistence” that Zuma be prosecuted. “Well yes, Downer did, for years and years, and he was right, and the SCA confirmed that to be so.”
He then tackled what Zuma’s legal team has called a more recent “leaking” of information, when News24 journalist Karyn Maughan was sent a copy of Downer’s unsigned affidavit in August, to which was attached a letter from the head of Zuma’s medical team. Maughan received the documents from advocate Andrew Breitenbach.
Once those documents were lodged with the court, they became public records, said Trengove. Breitenbach’s conduct was thus lawful and proper and he had not “leaked” anything.
“Media were entitled to it, and he merely facilitated access to it. The criticism of Mr Breitenbach, as if he has now somehow done anything wrong, is quite unfounded.”
That letter did not contain confidential information on Zuma’s undisclosed “medical condition” – the same medical condition and health issues that saw him being granted a release on medical parole in early September, after being jailed in July for being in contempt of a Constitutional Court order that he appear before the Zondo Commission.
Trengove also dived into the allegation made by Zuma’s attorney Bethuel Thusini that the NPA had attempted a physical examination of Zuma against his will.
This was in relation to the ongoing saga of the State trying to determine if Zuma is fit to attend court proceedings and stand trial, with his medical team intimating that he is not.
Mpofu had said that the NPA misread the order given by Koen that it could have its own doctor examine the former president. According to Mpofu, this could only take place after a comprehensive report had been received from Zuma’s medical team.
But according to Trengove: “There was nothing qualified in that order. There was no suggestion that we should first wait for the [medical report from Zuma’s medical team]. On the contrary, the examination is necessary in order to equip the doctors to see whether they agree with the state report. There was no suggestion in the order that it would kick in only if and when [Zuma’s medical team] delivers its report.”
Trengove also branded as “completely false” Thusini’s allegation that the investigating officer in the case, and the State’s medical doctor, had gone to the Pretoria hospital where Zuma was then being treated to try and examine him.
“The State made it clear throughout that despite its interpretation of the court order, that it wouldn’t examine Mr Zuma without his consent, and the State asked for his consent, and Mr Zuma has declined to give consent.”
Zuma is accused of receiving 791 payments, totalling R4.1-million, between 1995 and 2004 from his former financial/economic adviser Schabir Shaik and Shaik’s companies to help arms company Thales, Accused Number Two, secure lucrative defence contracts from the government as part of SA’s multibillion-rand 1999 armaments deal.
Downer was part of the original team that successfully secured Shaik’s conviction in 2005. Shaik was released on medical parole in March 2009.
Zuma is facing one count of racketeering, two counts of corruption, one count of money laundering and 12 counts of fraud.
Thales is facing one count of racketeering, two counts of corruption and one count of money laundering.
Zuma and Thales have pleaded not guilty to all charges. The matter continues at 11am on Wednesday morning. DM
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