Former president Jacob Zuma in the dock on Tuesday morning to hear about his application to have Advocate Billy Downer removed from his corruption case. (Photo:Doctor Ngcobo/Pool) 
Koen read a summary of his 107-page judgment into the court record, saying that the central question to be answered was what was meant by “title to prosecute”, as the veteran prosecutor having “no title to prosecute… was the sole basis upon which Mr Downer’s removal as prosecutor was sought [by Zuma]”.
The former president had sought the special plea in terms of Section 106 (1) (h) of the Criminal Procedure Act. Zuma contended that should the plea have been successful, he would have been entitled to an immediate acquittal under Section 106 (4) the same act.
During oral arguments in September, the State argued for the special plea to be dismissed, saying it was another attempt by Zuma to have his prosecution permanently stayed – which a full bench of the court had already ruled against.
Zuma has accused Downer of not having title to prosecute because he is lacking “independence and impartiality” and therefore would be unable to conduct a lawful prosecution that would uphold Zuma’s constitutional rights to a fair trial.
The former president unexpectedly arrived at court on Tuesday with a large entourage that included his presidential protection unit, medical doctor and daughter Duduzile. There was a strong police presence in the courthouse and precinct, with the streets directly outside the court cordoned off.
Said Koen while reading his summary, with a tired-looking Zuma listening: “The central issue [I had to determine] is whether the alleged lack of independence and impartiality or Mr Zuma’s concern that he might not enjoy a fair trial, will negate the title to prosecute... ”
“The central question is therefore what is meant by title to prosecute in section 106 (1) (h).
“I have concluded, on an interpretation of that provision, that ‘title’ denotes standing, as in locus standi, a legally recognised interest which, for example, a private prosecutor in terms of section 7 of the CPA or a statutory prosecutor in terms of section 8 of the CPA is required to have.”
Koen said that “such standing or interest which a private or statutory prosecutor or private prosecutor is required to have on a subject matter of the subjects they prosecute, is incompatible with the notion of them being independent and impartial”.
“If a lack of independence and impartiality would deprive a public prosecutor of his or her title to prosecute, then very few if any private and statutory prosecutors by the very nature of the interest or standing that they are required to have to prosecute in the first place, would have the title to prosecute.”
He said that Section 106 (1) (h) did not discriminate between private and statutory prosecutors, and instead was applied uniformly to all prosecutions.
“By parity of reasoning, I accordingly conclude that title in the case of public prosecutors, similarly as with private and statutory prosecutors, cannot be negated simply because a prosecutor might not be independent and impartial.”
The ultimate question to be answered then, said Koen, was not whether the prosecutor was not independent, impartial or biased, but whether the accused would receive a fair trial. But this was a question for the trial court to determine, and such considerations did not affect title to prosecute.
He said that any challenge involving a lack of prosecutorial independence, or a similar complaint, should have been raised by Zuma in a separate application, of which there was none.
“The sole issue is whether the special plea in section 106 (1) (h) has been established. I conclude that Mr Zuma’s complaints, even if taken at face value, do not affect the ‘title’, given its correct meaning in section 106 (1) (h), of Mr Downer to prosecute.”
Koen said there was also no basis to assign a wider meaning to the word “title” – as Zuma’s legal team had sought – to include instances of a lack of independence and impartiality or bias on the part of a prosecutor, by developing the applicable section of the Constitution.
“There is no need for such development as adequate remedies exist in our law to cater for the situation where the fair trial rights of the accused would be infringed or threatened.
“The special plea, therefore, falls to be dismissed. Accordingly, the provisions of section 106 (4) [the acquittal] also need not be considered any further.”
Regarding the specific 14 items raised by Zuma’s legal team when they were arguing for the special plea to be granted, Koen said that “many were based on speculation or suspicion or are based on inadmissible hearsay evidence and not on fact. Even if in limited instances they might at best qualify as possible irregularities, these irregularities were not such as to require Mr Downer’s removal as prosecutor and did not deprive him of the title, even in the extended sense, to prosecute.”
The judge then addressed an order he had made on 10 August that the State should allow a doctor/s of its choice to examine Zuma to determine if he was fit to attend court proceedings and stand trial.
Zuma has contended that the State attempted an unlawful examination instead of relying on the findings of his doctors. His legal team argued in September that according to Koen’s order, a medical write-up from his doctors first needed to be submitted before it could be determined if a medical examination should even take place.
Koen said of this: “An argument was advanced on behalf of Mr Zuma that this order was somehow linked to a medical report by Mr Zuma’s doctors first being produced. I have clarified in my [written] judgment that the order was unconditional and qualified in that way and that Mr Zuma was required to submit to medical examination by a doctor or doctors of the State's choice to determine whether he was fit to attend court. My clarification of that order is contained in paragraph 284 of [my written judgment].”
Zuma has alleged since he was first implicated in the arms deal matter more than 15 years ago that the National Prosecuting Authority (NPA) had been doggedly pursuing him for political reasons, and has tried to use this as another reason he should not be tried. Most of the arguments Zuma has put forth as “proof” of this have been dismissed by various courts.
Last week, Zuma filed a criminal complaint at the Pietermaritzburg Police Station demanding Downer be investigated for allegedly leaking a “confidential” medical report via a third party to News24 journalist Karyn Maughan in August.
He said the incident was part of a pattern of unlawful disclosure of information that he had had to contend with during the protracted arms deal matter. The criminal complaint was laid in terms of Section 41 (6) of the NPA Act, which prohibits disclosing information without the permission of the NPA’s national director.
In that complaint, Zuma yet again regurgitated allegations of how he had been pursued by the NPA and Downer.
The 79-year-old was released on medical parole last month due to an as yet undisclosed medical condition, having completed just short of two months of his 15-month sentence for being in contempt of a Constitutional Court order that he continue his testimony before the Zondo commission.
Once Koen had read the summary, Advocate Thabani Masuku, acting for Zuma, asked if Zuma would have to attend any potential interlocutory proceedings in person should these take place before the trial – a clear indication that the team will seek leave to appeal the ruling.
Koen said that Zuma being absent or present at such proceedings would have to be dealt with if and when they took place.
At the conclusion of Tuesday’s proceedings, a trial date was finally set for 11 April 2022. DM