Defend Truth

STALINGRAD DEFENCE: ZUMA vs DOWNER/MAUGHAN

Judges order Zuma’s long-winded lawyer, Dali Mpofu, to wrap up the speechifying

Judges order Zuma’s long-winded lawyer, Dali Mpofu, to wrap up the speechifying
Advocate Dali Mpofu and former president Jacob Zuma. (Photos: Leila Dougan)

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.

zuma mpofu maughan

News24 legal journalist Karyn Maughan at the Sanef picket outside the Pietermaritzburg Division of the High Court in South Africa on 22 March 2023. (Photo: Gallo Images / Darren Stewart)

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’

zuma mfofu picket

Participants in the SANEF picket outside court on 22 March 2023 in Pietermaritzburg. (Photo: Gallo Images / Darren Stewart)

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”.

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

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Comments - Please in order to comment.

  • Steve Rogers says:

    Noise. Zuma wanted his day in court. So why is he avoiding it with such determination? Worried?

  • Easy Does It says:

    Zuma’s case is an easy one and if you have not seen it from a distance, you are part and parcel of the RET bunch. There are many issues with this case but the two most important ones for me are
    1. Zuma and his lot truly insult their followers, making them actually believe that he really has been disadvantaged and information was illegally leaked, their presentation is a joke. This insulting does not include (Not Jimmy) Manyi and Carl. They are probably paid to act like idiots. Mr Budlender SC dispensed with Dali’s 5.5 hours of hogwash in just over 30 minutes.
    2. Dali behaves exactly the same in the Mkwebane 194 enquiry for the same reason. In both cases he is buying time in a losing case. He raises irrelevant points to the matter on hand. Ironically, in the 194 enquiry he insists context is “everything” and raises issues out of context. I am wondering if he is not well – I’ll perhaps, just plain scared or honestly believes nobody will see through his transparent defence. It’s not working and losing him cases. There is no credibility to talk about.
    As an add on I cannot overlook that in both cases he plays the race card, apartheid laws and when he was asked to politely shut up and sit down, he did so with disdain.

  • Barry Messenger says:

    Surely it shouldn’t take too long for a judgement to be formulated and given?

    Put an end to this circus.

  • Dee Bee says:

    The usual cowardly tactic of trying avoid the real issues by Zuma, and the usual bombastic, empty blathering by Mpofu, with Comical Carl popping up in the background desperately seeking attention – relevance long since having departed the room for him.

  • Robert Morgan says:

    The constant stream of flannel & guff emanating from this character’s maw is impressive. But his patter reveals the truth; he’s hopeless at his job. His Stalingrad type defence is transparent in its desperate desire to obfuscate; his chummy jokiness an embarrassment. The Law is a serious business, Dali must be careful he doesn’t burn his fingers juggling his legal hot potatoes.

  • Rehana Moola says:

    Seems to me Dali cares not whether he wins or loses. He just enjoys grandstanding and getting paid for it.

  • Diana Bidwell says:

    And the taxpayers are having to foot the bill for Mpofu’s oratory diarrhea? Heaven help our justice system.

  • André Pelser says:

    Clearly Mpofu’s objective is to avoid judgement and prosecution in the arms case.

  • David Amato says:

    I don’t get it, we still have no idea what his mysterious illness is and clearly the fact that he is not debilitated or dead it is not as serious as the letter states.

  • Richard Bryant says:

    Another characteristic of a narcissist is that they feel no shame in pursuit of their power. They destroy the lives of people in their way without giving it a second thought.

    I heard Mpofu say almost triumphantly yesterday that Maughn and Downer are criminals and belong in jail. While one can say something like that flippantly to friends, making a statement like that in front of 3 judges is quite another thing.

    All the while, he is representing a person who sat by knowing that a few hundred people died in the riots of July 2021 in his name, and couldn’t give a jot about that. Who has brought this country to the point of collapse and he couldn’t give a jot about that. He destroyed the life of Kwezi and didn’t give a jot about that. He’s fathered over 30 children and is proud of that achievement.

    You see, that’s how narcissists roll. It’s all about them and their ambitions. Anything in their way must be belittled and destroyed.

  • Terril Scott says:

    With his grandstanding in this case and the Mkwebane case, Mpofu’s intended audience is not the hearing authority, which knows the law, but those who do not know the law but see Mpofu as “their guy”. Mpofu will lose and his audience will feel confirmed in their delusion that Zuma et al are innocent victims of, not Hubris, but a “third force” and everyone knows what that is….

  • Jonathan Hendey says:

    In a way, it pleases me that Zuma has Mpofu to represent him – he doesn’t deserve better.
    And I’m pleased that Mpofu has Zuma for a client. He equally deserves no better.
    Like the ANC and EFF who they typify, they make a sorry coalition.

    • Kanu Sukha says:

      The frightening thing about your last observation, is that there is a ready ‘market’ for this circus ! Just look at the ‘trump’ phenomenon in the US … or the ‘boris’ one in the UK !

  • Grumpy Old Man says:

    I am not a Lawyer but the circumstances & potential mplications of this application concern me. That is the ability of persons of means to invent the Law & bring manufactured cases against ordinary persons which they are then in turn required to defend. Karen is fortunate that she has the support & financial backing of her employer but what if this were not the case? Surely? the Courts need to address this ‘theater of the absurd’in their judgement. I fear the potential implications to the ‘ordinary person’of not dealing with this matter decisively.

  • Michael Moody says:

    Log out

  • Nic Campbell says:

    I find it staggering that Mpofu is SC! Quite literally incompetent.

  • Dou Pienaar says:

    I have said it before ‘when a clown goes to the Castle he does not become King, the Castle becomes a circus’. Mpofu is a clown and we are allowing him to turn our judicial system into a circus.

  • Bennie Morani says:

    Remarks about Mpofu’s incompetence are gravely misplaced. He knows that his case has no chance of succeeding. But if his objectives are to delay the court proceedings further, put across political points, insulting his opponents, and (possibly most importantly) rack up huge legal fees, he is remarkably competent.

  • Kanu Sukha says:

    Maybe judges are waiting (in vain?) for the Legal Professional Council to take firm steps against an abuser of the judicial system by disbarring Dali from the profession ? This serial abuser of the system for the sole purpose of multiplying his “peanuts” needs to be brought to an end without delay. An order for the surrender of all the “peanuts” he has extorted over the years with these disgraceful performative experiments in legal forums needs to be issued. Even I as one with no legal background, can tell when a so-called advocate uses the ‘splatter or scatter’ technique in which you hope ‘something’ in all your BS might ‘stick’, is deployed as ‘legal’ arguments. Is/are there no person/s of integrity in the legal/judicial profession who can seriously pursue an end to this continuing abuse of the profession by a few recalcitrant individuals ? The only unedifying lesson in this sorry episode … is the unimaginable ‘challenges’ some serious journalists face . My hats off to you. You make us proud of being critical/analytical .

  • Kanu Sukha says:

    Remarkable … how one who is ‘terminally’ ill when he needs to face charges against him and needs to appear in court … becomes miraculously cured and in ‘high spirits’ when he decides to bring frivolous charges against others in a courtroom ! Where can I get/imbibe some of that juju ?

  • Johann Eybers says:

    Take away innuendo, insults, ideology, the race card and, …… suddenly nothing left of Mpofu’s arguments

  • dmpotulo says:

    Zuma and Trump two sides of the same coin. Trump cried that the 2020 elections were stolen but no proof given by him. Zuma hates his prosecutor with passion and throws mud hoping that some will stick. He has hired a SC but in some other cases he pleads poverty. It is possible that he pays his legal bills cash. Cash is KING in Gupta land. His SC is forever waffling advancing political instead of legal arguments

  • Johann Olivier says:

    Zuma and his lawyers remind of Trump and his coterie of legal brilliance. I believe the score is somewhere in the range of 70 – 0 for losses, at every level. When nonsense finally intersects with evidentiary requirements and procedural requirements, it’s ALWAYS game over for the grifters everywhere. (Unless it’s Russia, or a similar system – maybe Israel now? – where the courts are mere stamps of state.)

  • John Counihan says:

    It’s a horrific indictment of the impotence of the law, and the complicity of the ANC in all things evil, that a treasonous criminal like Zuma who has wrecked our beloved country, is still at large and able to be involved in such nonsensical “legal” processes.

  • virginia crawford says:

    An erratic style of argument – if it is not logical, can it be an argument? A long rambling speech isn’t a legal argument, more like obfuscation or possibly a bizarre symptom of an undiagnosed disease.

  • Gavin Brown says:

    The days tick by slowly from weeks to years -I’m sure Zuma will be dead before Mpofu empties his basket of applications and counter applications. Stalingrad is secured for now.

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