State asks court to reject Zuma’s bid to remove Downer from arms deal trial

State attorney Geoff Budlender has asked the Pietermaritzburg High Court to reject former President Jacob Zuma’s application to remove Advocate Billy Downer as lead prosecutor in the arms deal corruption trial.

Zuma and French arms manufacturer Thales were back in the Pietermaritzburg High Court on Thursday for his corruption trial.

He is again seeking the removal of Downer on the basis of his now invalidated private prosecution against him and journalist Karyn Maughan for alleged violations of the National Prosecuting Authority (NPA) Act, linked to the sharing of court papers that contained a sick note from one Zuma’s doctors.

Zuma is challenging the findings after the Supreme Court of Appeal (SCA) found that his private prosecution against the corruption prosecutor and journalist Karan Maughan was an abuse and should be set aside.

Delays

During court proceedings, Budlender argued that Zuma’s application is yet another attempt to delay the arms deal trial.

“And it (the court)  knows this for at least three reasons. In 2007, Mr Zuma’s counsel – the late Mr Kemp – told the high court this is what his client was going to do. The second reason is because the full bench found Mr Zuma has adopted a Stalingrad defence. And the third reason is that the SCA [Supreme Court of Appeal] has found Mr Zuma adopted a Stalingrad defence.”

Budlender argued that Zuma will unleash “a festival of Stalingrad delay” if he succeeds in forcing the removal of Downer and will go after whoever replaces him.

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SCA judgment

Budlender said the judgement of the SCA should stand.

The SCA earlier this month confirmed Zuma’s case against Downer and Maughan had no foundation and found his private prosecution against the duo was a continuation of his so-called “Stalingrad campaign” to avoid ever facing trial through constant challenges to the case against him.

“Mr. Zuma is attempting to appeal against the full bench decision to set aside the summons. He has applied for leave to appeal, and this court rejected it, and he has now applied to the SCA. The decision of the full bench stands until the SCA, or the Constitutional Court says it is wrong. I can just say in the SCA judgment that also now a subject of an attempted appeal to the Constitutional Court that appeal for the same reason except the judgment stands,” argued Budlender.

Budlender said Zuma stated that whether or not proceedings constitute Stalingrad tactics, it must be judged qualitatively on the merits of the challenge.  

Concourt

Advocate Dali Mpofu, acting for Zuma, told the court the former president filed an application to appeal the enforcement of the ruling that invalidated the private prosecution as an abuse.

“What has since happened is that, as of 25 October, the application for leave to appeal in that matter was served. And I’ve just learnt now that I think, because of the time, the stamp of the Constitutional Court says the 26^th,” Mpofu argued.

Mpofu said had Downer stepped down, the trial would be finished by now.

He suggested that the 20-year delay in getting the matter to trial had nothing to do with “Stalingrad” and labelled the argument that Zuma is using Stalingrad tactics as “nonsensical”.

“If the NPA itself and Mr Downer has done that, where would we be now? This is what would have happened. On the 17^th of October last year, which was the trail date that was set by Justice (Piet) Koen, then we would have all just come here and said that the other side, or the NPA, has withdrawn Mr Downer and we are ready to call the first witness. That trial would have been finished now,” Mpofu said.

Mpofu argued that Zuma would only get justice if Downer is removed, saying Budlender failed to address whether the former president will be given a fair hearing if Downer prosecutes him or not.

The mere fact that Zuma had instituted the private prosecution was enough to justify Downer’s removal, Mpofu argued.

Budlender said this argument would create a very damaging precedent if it was successful – and rejected Mpofu’s argument that the NPA’s refusal to remove Downer was unreasonable.

“The truth is that Mr Zuma’s attack is not only on Mr Downer. If Mr Downer is removed, Mr Zuma will then attack the participation of other members of the prosecution team and that is what Mr Zuma himself says,” Budlender argued.

Charges

The 81-year-old Zuma and French arms manufacturer Thales are facing multiple charges, including fraud‚ corruption, money laundering, and racketeering, in connection with the controversial multibillion-rand arms deal procurement concluded in the late 1990s while he was vice president.

It is the State’s case that Zuma was kept on a corrupt retainer by his former financial advisor, Schabir Shaik, who then used his political clout to further his own business interests.

The NPA also claimed Shaik facilitated a R500 000 a year bribe for Zuma from French arms company Thales in exchange for his “political protection” from a potentially damaging Arms Deal inquiry.

Zuma and Thales have pleaded not guilty to the charges.

Judgment has been reserved.