What should have been a status hearing at the Pietermaritzburg High Court on Monday in the Arms Deal graft case against former president Jacob Zuma and Thales turned into another opportunity for delay as Zuma’s attorney again insisted that senior State advocate Billy Downer not be allowed to lead the prosecution team in the trial.

Downer told the presiding judge, Piet Koen, that Zuma’s lawyers had said they would be bringing yet another application to have him removed from prosecuting the matter, something that had “already been dealt with”.

State prosecutor Billy Downer during the corruption matter against former president Jacob Zuma and Thales at the Pietermaritzburg High Court. (Photo: Sandile Ndlovu)

“We take exception, we note that it has been done, but we take exception,” he said.

That application would rest on the fact that Zuma was privately prosecuting Downer, not on his “title to prosecute”, as Zuma had previously tried and failed to do. 

Monday was set down as a holding date to determine trial readiness for 7 November, pending an application for leave to appeal that Zuma had lodged with the Constitutional Court. 

That application regarded the reconsideration application made to the then Supreme Court of Appeal (SCA) President, Mandisa Maya, which denied Zuma leave to appeal against his failed attempt to challenge the validity of an allegedly biased Downer prosecuting the Arms Deal case, as two other SCA judges had decided before Maya.

Application dismissed

South Africa’s apex court dismissed Zuma’s application for leave to appeal against Maya’s decision two weeks ago, saying it would not be in the interests of justice to consider this, given that Zuma could still bring a leave to appeal application before it relating to the 2021 dismissal of his special plea by Judge Koen.  

Advocate Mondli Thusini during the corruption matter against former president Jacob Zuma and Thales at Pietermaritzburg High Court. (Photo: Sandile Ndlovu)

Zuma filed an application with the apex court on Friday for direct leave to appeal against Koen’s decision, saying that Koen had been incorrect in law when he made his decision to dismiss the special plea to have Downer removed from the trial.

Downer, who maintains that the latest Constitutional Court filing was too late in any event, said that instead of seeking direct access to the Constitutional Court after Koen dismissed Zuma’s special plea and his leave to appeal against that decision, the route chosen by the former president indicated that he wanted to “avoid an early Constitutional Court final decision relating to the merits of the judgments.

“Why else would you do it? Clearly, they want to appeal against the merits, but they don’t do it. Why is that? [Because] they don’t want a final judgment from the Constitutional Court because, we submit, they fear a final decision and that that would then allow the trial to continue. And we argue that this is in line with what has come to be termed from this case as the ‘Stalingrad approach’.”

Read more in Daily Maverick: “Judge ‘surprised’, State ‘dismayed’, but absent Zuma scores another delay”

Quoting since retired Constitutional Court Judge Sisi Khampepe, Downer said that like all things in life, litigation must come to an end at some point. 

He was adamant that the trial should proceed on 7 November and that a court order should be made to this effect, but Zuma’s attorney, Sfiso Buthelezi, was equally adamant that Downer could not prosecute in the trial as he was being privately prosecuted by Zuma.

Buthelezi said the matter should only continue in the second term of 2023, to accommodate the latest Constitutional Court application.

The former president launched a private prosecution against Downer after the National Prosecuting Authority refused to prosecute him for, as Zuma contends, leaking his confidential medical information via a third party to News24 journalist Karyn Maughan, in August last year, in contravention of section 41 (6) of the National Prosecuting Authority Act. Downer and Maughan have both argued that the medical note that was “leaked” was in the public domain.

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That matter was in the Pietermaritzburg High Court on 10 October. Maughan has made an application to have the summons Zuma issued on her set aside, as the NPA had not yet issued a nolle prosequi certificate for her, as it had done for Downer. Her legal representative told the court that the former president’s attempt to privately prosecute her was an abuse of process, a violation of the right to free media and a violation of the right to freedom of expression.  

Downer has launched an application to have Zuma’s private prosecution of him declared invalid and an abuse of process. The applications to have the prosecutions dismissed are due in the same court on 8 and 9 December, with the actual private prosecution being set for 2 February. 

Downer told Koen on Monday that he was prosecuting the Arms Deal trial on the instructions of “my bosses”, and they did not feel he should withdraw from the matter.  

Mzwanele Manyi, Jacob Zuma Foundation spokesperson, at Pietermaritzburg High Court on 17 October 2022. Former president Jacob Zuma and French arms companyThales are facing charges of corruption, fraud, money laundering and racketeering. (Photo: Gallo Images / Darren Stewart)

It “cannot be correct” that prosecutors were forced to withdraw from cases because there were “attacks against them”, he said.

“The mere fact of an attack cannot be sufficient grounds to require that prosecutors then just willy-nilly withdraw from those cases and get other people to come and do their work for them. It doesn’t work like that, and if it worked like that, our justice system would be in a sorry state. It depends on the merits of the application, and the merits of the application will be determined in due course.”

Adjourned

Koen adjourned the matter to Wednesday, 19 October, for his decision regarding the direction of the trial.

Zuma is accused of receiving 791 payments, totalling R4.1-million, between 1995 and 2004 from his former financial/economic adviser, Schabir Shaik, and Shaik’s companies, to help Thales (accused number two) secure lucrative defence contracts from the government as part of South Africa’s armaments deal.

Downer was part of the original team that successfully secured Shaik’s conviction in 2005. Shaik was released on medical parole in March 2009.

Zuma is facing one count of racketeering, two counts of corruption, one count of money laundering and 12 counts of fraud. Thales is facing one count of racketeering, two counts of corruption and one count of money laundering.

Both parties have pleaded not guilty to all charges.

Zuma was first indicted on 20 June 2005. DM