The state-employed defendant has approached the courts to have the private prosecutor, former president Jacob Zuma, cough up at least R1-million as a security deposit in his case against the defendant.

Things work differently in a private prosecution, Zuma has since discovered.

The sting is Section 9(1) of the Criminal Procedures Act which stipulates that no private prosecutor referred to in Section 7 of the act “shall take out or issue any process commencing the private prosecution unless he deposits with the magistrate’s court in whose area of jurisdiction the offence was committed”.

Senior State Advocate Billy Downer has filed an interlocutory application with the Pietermaritzburg High Court, seeking a review of the costs a magistrate had previously determined in respect of Downer’s defence in a private prosecution initiated by Zuma.

Zuma put up R90,000 as security

Downer said the R90,000-odd Zuma put up as security for expenses that could be incurred defending the charges brought in the private prosecution was inadequate. A chunk of the deposit has been split between Downer and News24 journalist Karyn Maughan. (That gives each around R40,000 in reserve).

Zuma launched the private prosecution of Downer and Maughan on 6 September in response to the publication by News24 of details of Zuma’s “medical condition”.

Zuma has argued that publication of the medical report violates the National Prosecuting Act. The NPA had declined to prosecute Downer and Maughan, which prompted Zuma to take the route of a private prosecution.

The former president brought the private prosecution in terms of Section 7 of the Criminal Procedures Act.

Downer and Maughan are due to appear in the Pietermaritzburg High Court on 10 October. This is the same court in which Downer is the lead prosecutor in Zuma’s long-running trial for corruption.

Downer, in his founding affidavit, set out that the NPA and the prosecution team in Zuma’s corruption matter regarded the former president’s private prosecution as “an abuse of process”.

Visit Daily Maverick’s home page for more news, analysis and investigations

It was, he added, “without merit, designed to delay the prosecution against the private prosecutor [Zuma], intimidate me and the prosecution team and to avoid the trial proceeding on its merits”.

Therefore, the conduct and the outcome of the private prosecution were, argued Downer, matters of “significant public import and national interest beyond my own interests”.

The NPA and Downer, he set out, had engaged the services of senior counsel who will be assisted by two junior counsel in Downer’s defence.

Senior counsel’s charges in the matter amounted to R54,000 a day and R5,400 an hour, while the combined charges of both junior counsel were R45,000 a day and R4,500 an hour.

Zuma had filed a list comprising 23 witnesses he intended to call, while Downer has not yet decided on the number of witnesses he might call.

He said the matter would, however, run for at least 10 days. The costs that he had already incurred, said Downer, rendered the R40,000 allocated to him (with the balance set aside for Maughan) as inadequate.

‘Probable costs of R1m’

Costs of a senior counsel’s fee on trial for 10 days were R504,000. Junior counsel fees of R450,000, consultation fees amounting to R99,000 and contingencies of R5,000 totalled just over a million rand.

Downer has asked that Zuma deposit at least that amount “to provide security that is sufficient to meet the probable costs which may be incurred in respect of my defence in the private prosecution”.

He said he had no confidence that Zuma would in future be able to settle costs incurred in his defence.

A bank guarantee was not only required to secure the additional amount, but it was in fact necessary, said Downer, “due to the fact that the court has, as recently as August 2022, granted the curator of VBS Mutual Bank an execution order for Zuma’s outstanding debt”. DM