STALINGRAD DEFENCE: ZUMA vs DOWNER/MAUGHAN
Judges order Zuma’s long-winded lawyer, Dali Mpofu, to wrap up the speechifying
One of the biggest challenges the sitting judges may have in assessing whether Jacob Zuma’s private prosecution of veteran prosecutor Billy Downer and journalist Karyn Maughan is to proceed, could lie in deciphering senior counsel Dali Mpofu’s erratic style of argument.
Dali Mpofu, who has spent many hours at the lectern at all levels of the South African justice system and Parliament, used a good five hours on Wednesday to argue on behalf of his client — the former South African president — in what came across as a rambling and poorly planned effort.
His apparent inability to exercise brevity led to a restrained but visibly frustrated Steven Budlender SC, the advocate for Maughan, telling the Full Bench: “My learned friend Mr Mpofu is not entitled to disentitle my side [of] the proper entitlement to reply.”
Budlender accused Mpofu of not putting forth a legal argument, but “a speech for purposes of television, and that is most unfortunate”.
Judges Gregory Kruger, Jacqui Henriques and Mokgere Masipa had to order Mpofu to wrap it up.
Downer and Maughan are being privately prosecuted by Zuma on the allegation that they “colluded” to “leak” and publish the contents of a “confidential” medical letter, in contravention of the National Prosecuting Authority (NPA) Act.
Downer’s response has been that the private prosecution is yet another attempt to postpone the Arms Deal fraud and corruption trial, in which Zuma is accused number one, and Downer the lead prosecutor. Maughan contends that Zuma is attempting to stifle her ability to report on the Arms Deal trial and curb media freedom.
Both are challenging the legitimacy of the private prosecution.
‘A life-threatening disease’
Key to Mpofu’s argument on Wednesday was an attempt to discredit Downer’s claim that he had no hand in “leaking” the medical letter to Maughan, and Maughan’s argument that the nolle prosequi used to summon her to court had no connection to her.
“Can anyone say the dissemination of the private medical information of any person is right?” asked Mpofu.
“I, [Zuma’s] lawyer, didn’t know he was suffering from a life-threatening disease. I didn’t know there was an 18-month wait for a particular procedure. I didn’t know that. And that is the information that was leaked.
“It is insulting that [Zuma] must just deal with his information being bandied about and released by the prosecutors,” said Mpofu.
He said the NPA Act was clear that “no person shall without the permission of the National Director of Public Prosecutions, or a person authorised… disclose to any other person any information, the contents of any document or any other item in the possession of the prosecuting authority”.
Mpofu said the difference between a private lawyer and a public prosecutor was that the latter was bound by the act not to disclose, and could face a sentence for doing so.
Zuma claims that Downer’s legal colleague, advocate Andrew Breitenbach, sent the medical letter to Maughan on Downer’s instruction. Breitenbach, however, has said in an affidavit that he sent the letter to Maughan without seeking Downer’s permission. Maughan published its contents after it had been filed with the court.
Downer and Maughan have both stated that the letter — which contained no confidential medical information — was part of the public record.
‘A conflation of terms’
Said Mpofu: “There is a conflation of terms [by Downer and Maughan]. It’s deliberate. I’ve no doubt about it. I’ve looked at the papers carefully. They deliberately conflate publication, confidentiality, and disclosure.”
He said the mere disclosure of the information was the crime and not the subsequent publication of the letter.
“Advocate Downer sanctioned [the release of the letter] by omission and actively participated. There is nothing that absolves him.”
Mpofu labelled Downer a “serial leakist”, saying he had done the same thing 14 years ago with journalist Sam Sole, who at that time worked at the Mail & Guardian. “He has just replaced his journalist with Ms Maughan. It is not just leaking. It is coaching on how they must report.”
Mpofu then read the transcripts from the illegal phone tap of Sole and Downer’s conversation dating back to 5 May 2008. Sole’s phone calls were illegally intercepted by state intelligence agencies in the mid-2000s when he was following the start of the Arms Deal investigation into Zuma.
His transcripts formed part of a trove of illegally intercepted phone calls that became known as the “Spy Tapes”. Zuma used the “Spy Tapes” to have the initial charges related to the Arms Deal charges against him withdrawn.
Sole successfully challenged the interception of his calls and in February 2021 the Constitutional Court ruled that mass surveillance by the state was illegal, and made a number of significant, wide-reaching rulings about privacy.
Of Maughan’s claim that the nolle prosequi certificate — a prerequisite for a private prosecution — used to summon her to court did not mention her as a suspect, Mpofu said this was false.
He said even though the nolle prosequi only mentioned Downer, “it embraces” Maughan.
“To come here now and to say the nolle prosequi does not include Ms Maughan [is not true].”
On Monday, Steven Budlender argued that a second nolle prosequi issued by the National Prosecuting Authority, which Zuma has also relied on in pursuing Maughan, could not stand as it too was vague and had in any event not existed at the time of Maughan being summoned.
Mpofu said that to try to portray the second certificate “as a standalone” was wrong. It was a “clarification certificate”, he claimed.
‘Don’t kill the messenger’
Outside the courtroom, a contingent of journalists, activists and civil society groups picketed in support of Maughan, carrying placards that read: “Don’t kill the messenger” and “Media freedom is your freedom”.
At one point, Zuma supporter and expelled ANC member Carl Niehaus approached the picketers and said: “Media freedom has nothing to do with the case.” The private prosecution, he said, was about “illegality”, adding that the picketers did not understand what was going on in terms of the South African Constitution.
Reggie Moalusi, of the South African National Editors’ Forum, told Niehaus he was being “condescending”, and asked him to “leave our picket alone”.
WATCH: Carl Niehaus has approached the peaceful picket by @SAEditorsForum and is arguing merits of the #ZumaVsMaughanDowner case outside the Pietermartizburg High Court. He insists media doesn’t understand the constitution. Journalists and editors disagree. @News24 @TeamNews24 pic.twitter.com/96S0J0Jfwl
— Kaveel Singh (@kaveels) March 22, 2023
When Steven Budlender finally got a chance to speak, he said that, unlike Mpofu, he would be focusing on “the facts and the legal principles at hand”.
On the issue of jurisdiction, Mpofu had told the court that the constitutional founders decided that criminal matters must be decided by criminal courts, and civil matters must be decided by the civil court. He questioned why the matter was being heard by a Full Bench in a civil matter, when it should be heard in the criminal matter.
Said Budlender: “The Constitution doesn’t refer to civil courts, it doesn’t refer to criminal courts. It refers to courts, and at section 166, it refers to the high court, which embraces both civil and criminal courts, so the starting premise is plainly wrong.”
The case law Mpofu was using to argue his point was irrelevant to this matter, he said, and did not advance Zuma’s case “one iota”.
On the point of joinder, raised by Mpofu, Budlender said this was another attempt by Mpofu to “avoid getting to the merits”.
The “extraordinary” point had been made by Mpofu, said Budlender, that Maughan had to be joined by Downer and that because she wasn’t, the case was fatally flawed.
“Let me place on record what has already been placed on record: Miss Maughan does not wish to intervene or participate in Mr Downer’s application… she has launched her own application, and insofar as she had a right to join, she waives that right.”
Regarding the nolle prosequi certificate, Budlender told the court what he had on Monday, the first day of the sitting — that Maughan was not contemplated as a suspect by the Director of Public Prosecutions. Zuma’s legal team telling the court that Maughan had been questioned by the police was an attempt to “squeeze her into the suspect category”, said Budlender.
“She was asked for information, took legal advice and volunteered to give an affidavit to the NDPP that had nothing to do with the police. The premise upon which it is built that Maughan is a suspect is patently bad,” he said.
‘A deafening silence from our learned friend’
“Whatever the second certificate does or doesn’t say, I argued to you [on Monday] the certificate is a jurisdictional fact and had to be in place before the matter began, I pointed you to the authorities in that regard, and there was a deafening silence from our learned friend for Mr Zuma.
“You did not hear argument to the contrary, you did not hear authority to the contrary, and what that means is, when this application was launched by Mr Zuma against Miss Maughan, and the certificate was not in place, then it was invalid.”
Zuma’s case against Maughan was not just weak, said Budlender, but “hopeless, a mirage”.
Acting for Downer, and speaking of Downer being named an accessory after the fact by Zuma, Geoff Budlender SC said this was “utterly without any factual foundation”.
“The case is simply fanciful,” he said.
There had been no attempt made by Zuma to substantiate the complaint of accessory after the fact, said Budlender.
“No sufficient evidence exists. Mr Downer says there is no case against me, and here is the evidence [to prove that]. Mr Zuma says nothing.”
The charge of accessory after the fact was “nonsense”, said Budlender.
“Receiving information is not a crime. Receiving stolen goods is a crime… receiving information that a crime has been committed, is not a crime. Mr Zuma and his counsel cannot just make up the law to suit their case.”
As for Zuma not prosecuting Breitenbach, but calling him as a witness instead, Budlender said Breitenbach would say that Downer did not authorise him to disclose the medical letter, and that he did so on his own.
“If that is the evidence on which Mr Zuma relies, his case is sunk, it’s finished. His own witness that he is going to call is going to sink him, because he is going to tell the truth.”
The matter was adjourned and a date for judgment was not given. DM