The National Prosecuting Authority has confirmed that the Director of Public Prosecutions in KwaZulu-Natal has issued former president Jacob Zuma with a nolle prosequi certificate, allowing him to pursue a private prosecution against State prosecutor Billy Downer.

Downer is leading the prosecution in Zuma’s Arms Deal case. 

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.

A nolle prosequi certificate is issued to a party that has an interest in pursuing private prosecution when the prosecuting authority has declined to prosecute in a particular case.

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NPA spokesperson Mthunzi Mhaga said in a statement: “The NPA agrees with the DPP (Director of Public Prosecutions) that the charges laid against advocate Downer are baseless and cannot be sustained, hence her decision not to prosecute him.”

While Zuma’s team have the right to pursue private prosecution, the NPA said, “The NPA will support advocate Downer in defending himself against what we consider to be an abusive private prosecution.”

The NPA confirmed that Downer would continue to lead the prosecution team against Zuma and co-accused arms company Thales and was focused on ensuring that the trial against Zuma and Thales resumed on 15 August 2022.

The nolle prosequi can be used as more ammunition for Zuma’s legal team to stall his Arms Deal case (as they can argue Downer can’t be on the case while they are busy pursuing a private prosecution), but Zuma’s team has to pursue a private prosecution (which often fails and is very expensive) because the DPP refused to prosecute.

Both sides have pointed fingers at the other and made scathing remarks about the course of justice.

“[NPA head Shamila Batohi] knew that this was an abuse of process, because she knew that, without this certificate, we’re not able to do private prosecution,” said Mzwanele Manyi, spokesperson for the Jacob Zuma Foundation.

“And by us not being able to do private prosecution, she can keep Downer artificially clean.”

Zuma is also accusing 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.

Last October Daily Maverick reported that Zuma filed a criminal complaint with the SAPS against Downer,  demanding that Downer be investigated for allegedly leaking a “confidential” medical report via a third party to a  journalist in August.

Manyi said that the private prosecution would give them the opportunity to put Downer on the stand and call witnesses, which would “be a case where justice will really not only be done, but be seen to be done”. 

“The team is really raring to make sure that they make an example of how justice should be done … and the truth will come out.”  

Downer successfully prosecuted Zuma’s former financial adviser Schabir Shaik in 2005.

Zuma is accused of receiving 791 payments, totalling R4.1-million, from Shaik and his companies, to help Thales to secure lucrative defence contracts from the government as part of the Arms Deal.

Daily Maverick previously reported that Zuma is facing one count of racketeering, two counts of corruption, one count of money laundering and 12 counts of fraud and that Zuma and Thales have pleaded not guilty to all charges.

Mhaga said, “As the NPA progresses with prosecutions of corruption and other serious economic crimes, particularly against the rich and the powerful, we expect that there will be attacks against NPA staff, in an attempt to evade justice.  

“We will not be deterred by such attacks.” DM