MK party leader Jacob Zuma. Picture: Gallo Images/Daily Maverick/Felix Dlangamandla
KwaZulu-Natal High Court Judge Nkosinathi Chili said after having considered all the grounds relied upon by former President Jacob Zuma, he was unable to conclude that Zuma’s rights would be violated if Advocate Billy Downer remains the prosecutor of the arms deal trial.
The matter returned to the Pietermaritzburg High Court on Wednesday where Chili provided reasons to deny Zuma’s request to remove Downer from the arms deal corruption case.
The matter has been adjourned to 6 February 2025 for application for leave to appeal the hearing.
Chili said he was satisfied that there was merit in the submission that the grounds advanced by Zuma to remove Downer were officially dealt with in previous litigation.
“In his own words, Mr Zuma stated in his founding affidavit that he is aware that some of his atmospheric issues had already been dealt with in previous litigation, albeit in pursuit of different causes of action.
“He concluded by stating, and I quote: ‘Whichever way they may have been construed in just previous litigation, they are now invoked merely to demonstrate that the overall atmosphere is sufficiently poisoned and too toxic to permit for any fair trial if Mr Downer is a prosecutor in the public prosecution threat against me.’,” noted Chili.
Chili effectively said that Downer would remain as a prosecutor in Zuma’s arms deal corruption trial.
“Having considered all the grounds relied upon by Mr Zuma, both individually and cumulatively, I am unable to conclude that Mr Zuma’s right to a fair trial will be violated. Those are the reasons for the order I granted on 20 March 2024.”
Chili said Downer provided numerous practical reasons why he should be retained as a public prosecutor.
“The complexity of the matter, preparation for trial, availability of suitably qualified prosecutors, and the financial prejudice to the state.
“It is worth mentioning that, except for reiterating that Mr Downer is not indispensable, Mr Zuma did not deal with any of the hypotheses in his replying affidavit,” Chili said.
ALSO READ: Zuma says plans for 2025 trial ‘premature’ as he’ll continue fighting for Downer’s removal [VIDEO]
Chili said Zuma’s request for the removal of Downer as public prosecutor is “anchored” on a private prosecution of Downer.
“It was argued that if Mr Downer were to prosecute Mr Zuma today and then be prosecuted by Mr Zuma the next day, society will make a mockery of our justice system. If that were the position, then I would not have hesitated to grant an order removing Mr Downer as the public prosecutor.
“But that is not the position as things stand, there is no private prosecution. All attempts by Mr Zuma to prosecute Mr Downer have been unsuccessful. I might just add that at the date of the hearing of argument in the present application, the Supreme Court of Appeal (SCA) had already made a factual finding that the attempt by Mr Zuma to prosecute Mr Downer amounted to an abuse of process,” Chili added.
Chili was referring to Zuma having Downer prosecuted for allegedly leaking his medical records to News24 journalist Karyn Maughan.
Zuma initiated a private prosecution against Downer and Maughan over sharing public court documents, including a medical note, in September 2022.
However, Zuma suffered yet another defeat in a series of appeals after the SCA dismissed his bid to privately prosecute Downer and Maughan.
SCA President Mahube Molemela dismissed Zuma’s bid in a two-page order.
Chili read out the decision by the SCA.
“The Supreme Court of Appeal held as follows: ‘The facts demonstrate that the private prosecution of Mr Downer is an abuse of the process of the court for multiple reasons. First, as the High Court found it was instituted as a further step in a sustained attempt by Mr Zuma to obstruct, delay and prevent his criminal trial.
“This is an ulterior purpose, and the institution of the private prosecution was accordingly unlawful.
“Second, it was instituted in order to have Mr Downer removed as a prosecutor in Mr Zuma’s trial. This too is an ulterior purpose which renders the private prosecution unlawful.
“And third, the contemplated private prosecution is patently a hopeless case, it is obviously unsustainable. Mr Zuma has not made out a possible basis on which Mr Downer might be convicted, even on Mr Zuma’s own version of the facts. These two renders the private prosecution and abuse of process.’”
Zuma, alongside French arms company Thales, faces multiple charges of fraud, corruption, money laundering and racketeering linked to the multi-billion rand defence procurement project in 1999.
The last pre-trial hearing of the state’s case against Zuma happened in February 2021. The minutes of that meeting noted that Zuma placed it on record that “he is ready for the trial” but said he reserved his rights.
The case has been delayed by Zuma’s repeated efforts to remove Billy Downer.
ALSO READ: Court to explain why Downer won’t be removed from Zuma’s arms deal case
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