This week will go down as another critical one in the annals of South African jurisprudence and the criminal justice system as former president Jacob Zuma looks to the courts to pronounce favourably on his special plea that lead prosecutor in his arms deal case, advocate Billy Downer SC, be removed, alleging that he has no title to prosecute his case. The special plea is based on section 106(1)(h) of the Criminal Procedure Act No 51 of 1977, which states that “when an accused pleads to a charge he may plead… that the prosecutor has no title to prosecute”.

At the centre of Zuma’s special plea are alleged prosecutorial bias and lack of impartiality on the part of Downer who has only one objective against Zuma: “to win”. On the face of it, Zuma’s argument will make one sit back and reflect, perhaps even to pose some critical questions. Will the following be among them?

• Is the National Prosecuting Authority (NPA) and the court inherently biased against Zuma?
• Will it be ethical and legal for Downer to lead the prosecution when there is doubt about his impartiality when it comes to prosecuting Zuma?
• Should Downer just recuse himself from leading the prosecution and we get on with this case that has dragged on for years? and
• Is the involvement of the current prosecution team not infringing on Zuma’s constitutional right to a fair trial given that Downer was also involved in the Shaik case?

Most of the answers can be found in the 2014 Supreme Court of Appeal (SCA) decision in the case of Porritt v National Director of Public Prosecutions. Before delving into the relevance of Gary Porritt’s case in the Zuma case, I would like first to provide context about the right to a fair trial.

The argument or objection to Downer’s Title to Prosecute can be that his role as prosecutor or appointment, in this case, will be in breach of Zuma’s fair trial rights as encompassed in s 35(3) of the Constitution, read with s 179(4). Furthermore, it may be alleged that his appointment and role to prosecute the case conflicts with the provisions of s 32(1) of the National Prosecuting Authority Act No 32 of 1998, which provides, among others, that a member of the prosecuting authority shall serve impartially and carry out his or her duties and functions without fear, favour or prejudice.

Back to the Porritt case and the questions raised above: from a cursory look at Zuma’s special plea and responding to the questions above, it is clear that the lack of perception of impartiality on the prosecution team will be the main point of contestation. In my view, however, this will be an uphill battle to successfully convince the court that indeed Downer must be disqualified from the prosecution. It can be done, but it will take a masterstroke and a very shrewd lawyer to make it happen for Zuma. Stating that Downer has a passionate pursuit of Zuma’s prosecution “demonstrative of prosecutorial bias in which the only objective is to win” will not be enough to prove the lack of perception of impartiality of Downer.

The SCA has made it very clear that the impartiality principles that govern prosecutorial conduct must be seen and understood in the context of the role that prosecutors play in South Africa. Having an objective to win, according to the court, is not a sin and should be expected. According to the SCA, our criminal proceedings are adversarial in nature, and “it is inevitable that prosecutors will be partisan” [Porritt, para 13].

Thus, prosecutors “conduct the case for one of the two sides in a trial, namely the State, as representing the citizenry”. It is accepted globally and in South African courts that “prosecutors usually approach criminal prosecutions with a view, sometimes a very strong view, that accused persons are guilty” [Porritt, para 13]. The SCA did not create an open-ended prosecutorial zeal approach, hence it stated that this is “subject to the caveat that they must not prosecute in single-minded pursuit of a conviction” [Porritt, para 13]

In the Porritt case, Judge JA Tshiqi highlighted the following worthy of mentioning, that I consider the standard that Zuma will have to play by in exposing the alleged bias and single-minded pursuit of his conviction by Downer:

“There is a fundamental difference between the role and functions of a prosecutor as opposed to those of a magistrate or a judge. The judiciary is held to the highest standards of independence and impartiality because they are the decision-makers in an adversarial judicial system. Prosecutors neither make the final decision on whether to acquit or convict, nor on whether evidence is admissible or not. Their function is to place before a court what the prosecution considers to be credible evidence relevant to what is alleged to be a crime. Their role excludes any notion of winning or losing. It is to be efficiently performed with an ingrained sense of dignity, the seriousness and the justness of judicial proceedings” [para 11].

As I stated earlier, it is not impossible to secure the disqualification of Downer — but it is not probable. If Downer conducts the prosecution in a manner that is not only manifestly over-zealous but vindictive and at times patently dishonest in that he deliberately misled or misleads the court, for example, then his disqualification will be justified. In such an instance, as observed by the Zimbabwean Supreme Court in the case of Smyth v Ushewokunze & another 1998 (3) SA 1125 (ZS), his conduct will then “instil a belief that if the case were to remain in his hands there is, at the very least, a real risk that he will not conduct the trial with due regard to the basic rights and dignity of the applicant” (at 1132A to 1134B).

If the prosecution led by Downer places “a hotchpotch of contradictory evidence before a court”, and then leaves the court to make of it what it wills, it must concern us all and Mr Zuma must be given the benefit of the doubt regarding the meritorious nature of his special plea. Under such circumstances, it will be a clear case that there was “an inherent danger of unfairness” to Mr Zuma and accordingly that his right to a fair trial is in jeopardy if Mr Downer proceeds as the prosecutor in this matter.

An argument in the special plea that during the infamous spy tapes saga Downer was a subordinate of Leonard MacCarthy, then head of Scorpions, thus there is a conflict, brings a different — though short-lived — twist to the defence. Prosecutors are conflicted all the time they take on the case against accused persons. To use words from an article by Bruce A Green and Rebecca Roiphe in the Boston College Law Review titled “Rethinking Prosecutors’ Conflicts of Interest”, “prosecutors’ conflicts are pervasive and endemic to almost all of their decisions. Any effort to rid prosecutors’ offices of conflicts would be futile and potentially counterproductive” [at p.466].

Some serious conflicts of interest different from those the courts already know about and have dismissed must be shown. As I said, Zuma’s lawyers will have to traverse these tough standards and principles to dislodge Downer from the prosecution team.

For instance, the Kansas Court of Appeals criminal case in State v Cope 30 Kan. App. 2d 893 (2002), set a two-part standard for removing a prosecutor based on conflict of interest. According to the court, a party that obligates the party seeking removal will have to establish both (1) the existence of a conflict, and (2) the severity of the conflict:

“A conflict of interest exists in the prosecution of a criminal case whenever the circumstances of the case evidence a reasonable possibility that the prosecutor’s office may not exercise its discretionary function in an even-handed manner. However, a conflict of interest warrants recusal only if the conflict is so grave as to render it unlikely that the defendant will receive fair treatment during all portions of the criminal proceedings,” said the court.

It must be noted, should Downer’s role in Shaik be argued by the defence, that the SCA in the case of Director of Public Prosecutions, Western Cape v Killian 2008 (1) SACR 247 (SCA) has already ruled that “unfairness does not flow axiomatically from a prosecutor’s having a dual role”. More will have to be put to the court to show that Downer is not competent to prosecute Mr Zuma.

Relevant here from the Killian case is that the appellants wanted to argue that “the involvement of Ferreira, a senior prosecutor in the employ of the NPA, would compromise their right to a fair trial simply because he had previously assisted in litigation to which the appellants were linked”. The SCA ruled that such an argument cannot be sustained, particularly because “there are no allegations of impropriety on his part during the course of the previous litigation or during the course of the present proceedings. There is no suggestion of conduct on his part that could have constituted a basis for the existence of a reasonable apprehension in the minds of the appellants that he was biased against them.”

The punch in favour of the NPA was that a complaint that “an official in the employ of the NPA should not be allocated to a matter to which he had previously been involved, for to do so would create an apprehension of bias on the side of an accused” is wrong and should not be readily accepted. “An acceptance of that contention would undermine the independence of the NPA and the NDPP and their powers to determine which official is suitable to handle cases at any given time. So too, would the concept of the separation of powers be undermined,” said the court.

Is Zuma entitled to an acquittal as his special plea suggests or is this another Stalingrad tactic by the former president? The reality is that the man surely knows how to test and attempt to use every legal avenue available. It is either pure genius or a mere case of inefficient legal advice and representation. Section 106(4) of the CPA states that “an accused who pleads to a charge, other than a plea that the court has no jurisdiction to try the offence, or an accused on behalf of whom a plea of guilty is entered by the court, shall, save as is otherwise expressly provided by this Act or any other law, be entitled to demand that he be acquitted or be convicted”.

So far Zuma is right to some degree. If he succeeds with the disqualification of Downer, section 106(4) entitles him to demand acquittal — the operative phrase here being “entitled to demand to be acquitted or be convicted” and to be “entitled to be acquitted”. His demand for acquittal will have to be considered on the totality of facts by the court.

An important observation by the SCA in the case of Porritt, which will be relevant should there be an order to disqualify the prosecutor based only on impartiality, is that “the order for the recusal of the prosecutors is not based on any impropriety on their part, but the perception of lack of impartiality… Further, the decision is not based on the merits of the case…”  Judge Tshiqi’s view was that the disqualification of prosecutors is “akin to the recusal of a presiding officer. The proceedings in such a case (recusal of a presiding officer) are a nullity, and the accused would not be entitled to demand either conviction or acquittal,” said the judge.

I am referring to this view by Judge Tshiqi because of its relevance to the question of whether Zuma must be acquitted immediately once Downer is disqualified.

In conclusion, we must take note that “when a prosecutor in a criminal case has a conflict of interest, the court may disqualify the prosecutor, and, in some jurisdictions, the executive may seek to appoint an alternative prosecutor or the Attorney General may intervene to substitute for the local prosecutor. Like professional discipline and judicial remedies in criminal cases, these actions are undertaken sparingly” [Bruce A Green & Rebecca Roiphe, at p.491].

Helpful for South African jurisprudence, particularly the disqualification of prosecutors under section 106(1)(h), is the recent Kansas Court of Appeals criminal case in State v Cope, which set a two-part standard for removing a prosecutor based on conflict of interest.

According to the court, a party that obligates the party seeking removal will have to establish both 1) the existence of a conflict, and 2) the severity of the conflict:

“A conflict of interest exists in the prosecution of a criminal case whenever the circumstances of the case evidences a reasonable possibility that the prosecutor’s office may not exercise its discretionary function in an even-handed manner. However, a conflict of interest warrants recusal only if the conflict is so grave as to render it unlikely that the defendant will receive fair treatment during all portions of the criminal proceedings,” said the court. DM