South Africa

AGE OF ACCOUNTABILITY

Recycle, repackage, repeat — Billy Downer sets out Jacob Zuma’s years of rolling the legal dice to stay out of jail

Recycle, repackage, repeat — Billy Downer sets out Jacob Zuma’s years of rolling the legal dice to stay out of jail
Former president Jacob Zuma. (Photo: Leila Dougan | Advocate Billy Downer. (Photo: Gallo Images / Alet Pretorius)

Advocate Billy Downer, the lead prosecutor in successive National Prosecuting Authority court encounters with Jacob Zuma since 2001, is a veteran of the former president’s Stalingrad legal strategy.

“Mr Zuma’s purpose with his Stalingrad tactic is to avoid at all cost to have his day in court, that is, to face the charges against him,” Advocate Billy Downer set out in a founding affidavit dated 22 September and submitted to the Pietermaritzburg High Court.

Downer’s affidavit was in response to a notice that Zuma had initiated a private prosecution against him after a failed bid to have him removed as the prosecutor in Zuma’s Arms Deal court case. 

Zuma has also accused Downer of “leaking” confidential doctors’ letters to News24 journalist Karyn Maughan in matters related to his medical parole.

Maughan has challenged Zuma’s right to instigate a private prosecution against her, highlighting that his action was part of his strategy to intimidate journalists and those who have covered his 21-year attempt at dodging accountability. Zuma must respond to Maughan by 30 September.

Zuma’s prosecution on criminal charges, said Downer in his affidavit, had been “dragging on and off for the better part of 20 years. The delay has in large part been due to Mr Zuma’s ‘Stalingrad tactic’.” 

The manner in which Zuma accomplished this, explained Downer, “is to launch and prosecute endless challenges of various kinds. They have varied widely over the years but were all baseless and ultimately failed. They served Mr Zuma’s purposes, however, because he pursued them as far as he could play for time.” 

Whenever a challenge finally petered out, Zuma initiated a fresh one to trigger another round of litigation “to avoid ever having to stand trial”. 

Since the turning down of Zuma’s plea to have Downer removed, Zuma had “repackaged two of his accusations which Judge [Piet] Koen had dismissed” by obtaining a nolle prosequi from the National Prosecuting Authority (NPA).

The former head of state had also frequently attacked Downer over the years, questioning his “independence and impartiality” and his ability to conduct a “lawful prosecution that will uphold his constitutional rights to a fair trial”.

Zuma had done so, said Downer, in the “Spy Tapes” matter which culminated in a Supreme Court of Appeal (SCA) judgment that cleared the way for Zuma’s renewed prosecution. 

Downer had also been attacked by Zuma in his application to the high court for a permanent stay of prosecution, dismissed later by a Full Bench, as well as in his plea to have Downer removed from the Arms Deal court case.

Zuma has accused Downer of the “unlawful disclosure” of information in two instances — “leaking” a doctor’s letter to Maughan and disclosing information about Zuma to amaBhungane veteran journalist Sam Sole 14 (yes, 14) years ago.

Zuma’s arguments, argued Downer, were fatally flawed and both had already been dismissed by the high court.


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Anatomy of the Stalingrad strategy

In his affidavit, Downer set out in detail Zuma’s Stalingrad defence, from 30 August 2003 to (at least) 1 October and which has collectively run for 229 months, or 19 years.

The cost to the public purse of Zuma’s embarking on this path is anything from R11-million to R25-million. In May 2021, the state attorney’s office conceded in court papers that it could not find all of Zuma’s costs records. 

The office is, in the meantime, being investigated for fraud and corruption by the Special Investigating Unit. An SCA ruling on Zuma’s costs found these were “shrouded in secrecy”.

Downer’s timeline of Zuma’s stroll down Stalingrad Lane begins with his application to obtain the Thint encrypted fax in the Arms Deal corruption matter (an application launched but never enrolled). 

It includes Zuma’s complaint to the Public Protector in 2003 and the challenge by his then lawyer, Michael Hulley, of the lawfulness of search and seizure warrants for Zuma’s businesses and homes.

While the high court granted Zuma’s application, the SCA dismissed it on appeal, a decision with which the Constitutional Court later concurred. This took 34 months to work its way through the courts. 

It was later revealed that Hulley had earned at least R1.6-million a year on retainer as Zuma’s personal lawyer.

Then there was Zuma’s 2006 high court application opposing an NPA application to issue letters requesting mutual legal assistance from the UK and Mauritius. 

The request was granted, Zuma appealed, and it was on this occasion that Zuma’s then legal representative, Kemp J Kemp, first mapped out the intended Stalingrad approach.

“This is not a battle where you send a champion out and have a little fight and that’s it — this is more like, we will fight them in every room, in every street, in every house,” Kemp famously announced.

Zuma first made representations to then National Director of Public Prosecutions, Mokotedi Mpshe, on 10 February 2009. Mpshe withdrew the charges, a decision Judge Aubrey Ledwaba later ruled “had ignored the importance of the oath of office which demanded of him to act independently and without fear or favour”.

The “Spy Tapes” saga dominated headlines from 7 April 2009 to 13 October 2017, a whole 102 months, Downer revealed.

Zuma’s second application began on 11 October 2017 when he asked to make representations to the NPA, again, which was refused by the then NPA head, Shaun Abrahams.

The former president’s stay of execution in the Arms Deal corruption matter began in 2018 and ended in April 2020 when Zuma withdrew his application, 24 months later.

His application to remove Downer from the trial began in May 2021 and was dismissed in February 2022. Zuma appealed and lost, launching a reconsideration application to the President of the SCA, Judge Mandisa Maya. Maya dismissed this in May 2022.

Undaunted, Zuma headed for the Constitutional Court, which also dismissed the application.

And here we are.

“All his challenges have ultimately failed, but only after he had pursued them to the bitter end. His ultimate goal has been to never face his day in court,” said Downer.

Zuma had launched his challenges “one by one”, said Downer, “each only starting when the previous one failed to maintain, extend and prolong their impact over time”.

Those Spy Tapes 

That Zuma has sought to reintroduce the old Spy Tapes saga at this point brings us almost full circle in the life and alleged crimes of the former president,

In his application brought before Koen, Zuma included the old accusations that Downer had leaked information to amaBhungane’s Sam Sole.

Zuma himself, said Koen, had previously “expressly disavowed and accordingly waived reliance on the leaks” and as a result, these were “no longer an issue on which reliance can be placed”.

Unfazed, Zuma has now repacked the allegation as a criminal complaint in his private prosecution of Downer. This is in the face of an investigation of the complaints by the Director of Public Prosecutions in KwaZulu-Natal, Advocate Elaine Zungu, who declined to prosecute.

Downer said there had been no disclosure of information to Sole related to Zuma’s prosecution and that the former president “tells us very little of the accusation”, merely stating that Downer had allegedly done so in telephone conversations between 4 and 13 June 2008.

Zuma used the Spy Tapes to persuade Mpshe to withdraw the charges against him in April 2009. These tapes were said to have implicated former National Director of Public Prosecutions Bulelani Ngcuka and former Scorpions boss Leonard McCarthy in discussing the timing for prosecuting Zuma in order to boost the chances of Thabo Mbeki winning re-election.

The tapes have featured in two cases since then: the DA’s successful challenge of Mpshe’s withdrawal of criminal charges against Zuma, and Sole’s successful Constitutional Court challenge to provisions of the Regulation of Interception of Communications Act 7 of 2002.

Way back then, Sole had asked Downer about mechanisms for mutual legal assistance in terms of the International Co-operation in Criminal Matters Act and only mentioned Zuma because it was public knowledge, said Downer, that the NPA was seeking such assistance from other countries.

The charges brought in this instance by Zuma, said Downer, displayed features “which highlight Mr Zuma’s abusive tactics”.

Zuma, he said, had been aware of Downer’s conversation with Sole since 2009.

“He has repeatedly complained about them in his failed bid to discredit me. Only now, after more than a decade, does he seek to prosecute me for the same complaint.”

It was, he added, “obviously a last-ditch attempt to recycle the same complaint yet again in pursuit of his Stalingrad tactic”. 

What made things worse, is that Zuma previously abandoned any reliance on this complaint and the attempt to revive it “is clearly in bad faith”.

More manifestations of abuse, said the prosecutor, were evidenced in the summary which “brims with irrelevant, one-sided and sensationalist allegations”. 

Zuma’s list of witnesses, too, added Downer, was “a publicity stunt”. DM

Gallery

Comments - Please in order to comment.

  • William Kelly says:

    Yes yes Mr Downer. But… it’s worked!

  • Andrew Blaine says:

    And the lawyers are laughing all the way to the bank? Is this not an unnecessary, expensive waste of the time of the courts and the peoples of South Africa?

  • Katharine Ambrose says:

    Isn’t there a handy ‘enough is enough’ clause that can put a stop to frivolous waste of the court’s time and the country’s money?

    • John Stephens says:

      There should be a complete overhaul of the Criminal Procedure Act to ensure that a “Stalingrad” defence cannot be implemented. I am not suggesting that the Act should be unfair to defendants, but it should be equally fair to the prosecution.
      The problem is that it allows all sorts of interim applications and orders and each of these can be taken on appeal through the various hierarchical levels of Court. If you start in the Regional Court, you can appeal to the Supreme Court, then to the full bench, then to the Supreme Court of Appeals and eventually to the Constitutional Court. At any level, leave to appeal must be given to proceed to the next level, but if leave is refused, the refusal itself can be appealed or challenged by petitioning the higher court. All of this wastes time and money.
      No interim applications, objections or whatever should be allowed pretrial. Let the trial take place. One appeal is sufficient for justice. Let there be a Supreme Court of Criminal Appeals to which you can appeal whether from whatever trial court heard the case. The Appeals Court can allow or deny the appeal or declare a complete or partial mistrial. Rules for the conduct of a complete or partial retrial can then be formulated in the Act. That Court’s decision should be final.

  • Mike Blackburn says:

    i’m starting to think that sending Mr Zuma to jail would count as a pyrrhic victory. how much money have we wasted on an old man who isn’t going to last long? if he goes to jail the country will burn again. we’re never going to see the stolen money. maybe enough is just enough?

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