Standing in the dock of the Pietermaritzburg High Court on Monday morning will be advocate Billy Downer, the State’s dogged lead prosecutor in Jacob Zuma’s corruption trial, and alongside him senior News24 journalist, Karyn Maughan.

Zuma announced at the weekend that he was feeling fit enough to attend his private prosecution of the duo. (Miracles do happen! – Ed)

The convicted former head of state lodged a criminal complaint, accusing Downer of “leaking”  confidential doctors’ letters to Maughan. The NPA declined to prosecute, issuing a nolle prosequi certificate which prompted Zuma’s unprecedented current course of action.

And while his “terminal condition” might have been revealed in these letters, as Zuma claims in his answering affidavit to Maughan’s application to set aside her summons, medical interventions have clearly worked miracles.

Celebration

The 79-year-old’s loudest cheerleader, his daughter Dudu Zuma-Sambudla, retweeted a clip of a sprightly looking Zuma celebrating the end of his prison sentence on Friday, 7 October, gazing at fireworks lighting the sky and offering a libation of champagne to the earth.

The Supreme Court of Appeal (SCA) is still set to rule on a high court judgment that Zuma’s medical parole, sanctioned by former spy and prisons boss Arthur Fraser, was illegal. So the clock is ticking.

It is precisely the documents related to Zuma’s application for this medical parole, which he served out in the comfort of his home after a stint in a private hospital in Pretoria and being cared for by a state medical team for free, that have now come into play.

Zuma’s state of health has been shaped into a weapon of last resort.

For almost 20 years the courts have allowed Zuma his constitutional right to launch myriad legal challenges to his prosecution on corruption charges related to the Arms Deal. He has lost nearly all.

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The former head of state will now face the symphony in the same Pietermaritzburg High Court sometime in November — depending on his health, no doubt.

Zuma first went for Downer, launching a “special plea” to have the prosecutor removed from the matter after 19 years. The attempted shafting made it all the way to the Constitutional Court, where Zuma lost once again.

Maughan launched an application to set aside her summons, saying the private prosecution was a “gross abuse” of the court process and was designed at preventing or intimidating the media from reporting on Zuma’s trials and tribulations — which are vast. 

Maughan also pointed out that while Zuma might have obtained a nolle prosequi from the NPA with regard to Downer, no such certificate was issued with regard to her.

Downer’s essential response to Zuma’s attempt at a private prosecution was that the former president’s motive was “to avoid at all cost to have his day in court, that is, to face the charges against him”. 

Zuma has also in this private prosecution revived a 2008 complaint that Downer had leaked information to amaBhungane journalist, Sam Sole, a matter long since dealt with by the courts.

Many fictions

In his response to Maughan’s application to have the matter set aside, the former president, instead of arguing legal points, repeats many fictions about his two-decade-long brush with accountability, the law and the Constitution.

He states: “It is common knowledge that I was incarcerated on 7 July in respect of a judgment of the Constitutional Court which found me guilty of contempt of court for refusing to appear at the so-called Zondo Commission when I believed and continue to believe that Justice Zondo [Chief Justice Raymond Zondo] was disqualified by a material conflict of interest related to my past relationship and dealings with him.”

Zuma adds that “those issues” were the subject of “separate judicial review proceedings to do with the decision of Justice Zondo refusing to recuse himself”.

The challenge by Zuma’s lawyers was lodged in the Pretoria High Court on the day the team informed the Constitutional Court that he would not be participating in the Zondo Commission’s case to force him to appear before it.

Responding to both Maughan and Downer’s affidavits, Zuma opined that there were “constitutional misconceptions about the true nature of the disputes between the parties and the real constitutional issues at play in respect of the core issues which characterise my prosecution”.

‘Criminal collusion’

Maughan and Downer had “criminally colluded” to publish his medical records, said Zuma, although no court has found either Maughan or Downer guilty of any criminality.

The former head of state also accused Maughan of “publishing my medical records without my permission on the false premise of exercising media freedom”.

“Media freedom certainly does not include the right of journalists to commit crimes,” said Zuma.

Zuma said it was “common knowledge that in early August 2021 and due to severe illness, I was transferred to a private heart hospital in Pretoria under the supervision of prison officials, private doctors and the medical team of the South African Medical Health Services, a unit of the South African National Defence Force which is responsible for the health matters of inter alia former heads of state such as me”.

Then apparently setting out his medical condition again, Zuma added that on or about Sunday, 8 August 2021, Dr Mcebisi Mdutywa “who was the leader of the SAMHS medical team treating me wrote a confidential letter or document addressed to the Head of Centre at Estcourt Correctional Centre setting out my medical condition which was described inter alia as needing an extensive medical procedure that has been delayed for 18 months.”

What the letter had also disclosed, complained Zuma, was “other confidential non-public information including the fact that since 28 November 2020 I had been put under the active care and support of the SAHMS medical team suffering a traumatic injury”.

‘Sensitive information’

Given his “status as former head of state”, such confidential medical information was particularly sensitive, said Zuma, who added that this was “automatically classified in terms of the relevant laws of South Africa”.

Zuma said he had also had “an interest in protecting my family members from undue anxiety over my health until such time that they would hear from me what my health position was”.

He said he had intended to do this “only when the conditions were right and on my own terms, not those dictated by others. Until then I elected to downplay the seriousness of my condition, especially to the children”.

Zuma has accused Maughan of targeting him specifically and that her reporting was “biased”.

Maughan’s response to this was that her work over the years on Zuma’s revolving door court history “is informed by my independent and professional assessment of the facts and a concern to report on legal developments in the public interest”.

Having run out of options, Zuma is now using a private prosecution in an attempt to turn the tables in the courts and in law.

The sight of a respected prosecutor and journalist forced into a dock to defend their right to hold Zuma to account is not a good look for the country or the judiciary. But that has never stopped the former president. DM