Former President Jacob Zuma in the in the Pietermaritzburg High Court. Picture: X/@MkhontoweSizwex
As the country waited for the State of the Nation Address (Sona), the Pietermaritzburg High Court heard arguments as former president Jacob Zuma battled the State to remove his arms deal corruption trial prosecutor from the case.
Zuma, who was expected to attend the Sona, returned to court on Thursday to appeal the dismissal of his latest attempt to force Downer’s removal.
Judge Nkosinathi Chili reserved judgment in the matter after a day of legal arguments from the State and Zuma’s legal team.
During Thursday’s court proceedings, Zuma’s counsel, Thabani Masuku, argued that Chili should consider the requirement of a fair trial.
“When one looks at the requirements of a fair trial, and the allegation is that there was prosecutorial misconduct and that the prosecutor’s misconduct is implicated in this heads of prosecutorial misconduct, those are issues to be raised right up front.
“To condemn that as Stalingrad is irresponsible is to scandalise an accused person and is demonstrative of the fact that this particular prosecutor is no longer fit to conduct a trial in accordance with the principles of our constitution,” Masuku argued.
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Zuma has been accused of engaging in Stalingrad legal tactics with legal battles, challenges and appeals to delay his arms trial and avoid his day in court.
Earlier, Zuma’s advocate, Dali Mpofu, pointed out the crux of Zuma’s appeal to the court, which Masuku elaborated on.
“We don’t seek Mr Downer’s removal out of fun; it’s not a sport. We are not engaged in a sport, we’re engaged in the exercise of constitutional rights, and we are saying Mr Downer is not indispensable and the NPA would be wise to remember that this spirited opposition to Mr Zuma’s application is delayed, to start of his trial.
“We’ve said to them, give us another prosecutor, we’ll run the trial. They insisted on Mr Downer, but the result of that is Mr Zuma gets prejudice with further delays in his prosecution argued,” Masuku argued.
Mpofu earlier argued that the appeal must be heard before Zuma’s trial.
“We can’t go to the end of the trial and decide at the end. That is madness. To run the trial would be a waste of time and a waste of money.”
The arms deal case was declared trial-ready three years ago, but has been delayed by Zuma’s repeated failed efforts to force Downer’s removal.
Advocate Andrew Breitenbach, the National Prosecuting Authority’s (NPA) counsel, argued that Chili should not only dismiss Zuma’s latest appeal application but also confirm that his trial should continue—despite any appeals that he may launch.
“The relationship between the interests of justice and combatting the abuse of the processes of this court in the particular form which has manifested in recent times in some cases and is referred to as Stalingrad litigation strategy…
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“We submit that characteristic of this strategy is an interminable series of applications and other steps including representations to the prosecuting authority and special pleas and the accused deploying this strategy in those steps raises spurious objections to the investigation and the prosecution processes,” Breitenbach argued.
Zuma filed a series of appeals in a two-decade-long cycle of challenges crusade to prosecute Downer and journalist Karyn Maughan privately.
However, the cases were invalidated as an “abuse of process” by multiple courts.
The former president tried but failed to privately prosecute Downer and Maughan for alleged breaches of the NPA Act. This is in connection with the leaking of his confidential medical information from one of the former president’s military doctors in August 2021.
Breitenbach argued that the facts of the present case show that, far from serving the interests of justice, a piecemeal appeal against this Court’s dismissal of [Zuma’s] application for the removal of Downer would be “inimical to the interests of justice”.
“We submit that permitting an appeal at this stage of the criminal trial will not be in the interests of justice. There is no reasonable basis for the contention that Mr Zuma will suffer grave injustice if his criminals trial proceeds with Mr Downer as a prosecutor.”
Breitenbach stated Zuma’s intended appeal is a continuation of this Stalingrad litigation strategy.
“The fundamental reason for that is his application for the removal of Mr Downer was a step in or part of [Zuma’s] ‘Stalingrad’ litigation strategy, the implementation of which entails the serial abuse of the process of this and other courts, largely by rehashing points which have already been decided against him, in an attempt to avoid or further delay the start of the criminal trial on the merits of the charges against him.
“We submit that permitting an appeal, would be contrary to the rules governing appeals which essentially require that the intended grounds of appeal have reasonable prospects of success. We also submit there is no other compelling reason, those being the words of the relevant part of Section 17 (1a) why the appeal should be heard at this stage as an intermediate appeal, Breitenbach said.
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In September last year, Chili said he was satisfied that the submission that Zuma’s grounds for removing Downer were officially dealt with in previous litigation had merit.
Chili said Downer would remain a prosecutor in the former president’s arms deal corruption trial.
Zuma wants Downer to be removed from the prosecution over alleged bias, saying his right to a fair trial would be infringed if the prosecutor remained.
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.”
Responding to Zuma’s attempt to challenge Chili’s decision not to remove Downer, the state argued that Zuma’s latest application or any other appeal he makes “will not suspend the operation and implementation of this court’s dismissal of his application for the removal of Mr Downer as the public prosecutor in these proceedings”.
“The criminal trial can and should proceed in April 2025 with Mr Downer as the lead prosecutor,” the NPA said.
Zuma faces 18 charges of corruption, racketeering, fraud and tax evasion.
In the state’s case, Zuma was kept on a corrupt retainer by his former financial advisor, Schabir Shaik, who then used his political clout to further his 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.
Meanwhile, Zuma’s private prosecution matter against President Cyril Ramaphosa has been removed from the roll in the Gauteng High Court in Johannesburg following his unsuccessful attempt for leave to appeal in the Constitutional Court.
In its judgment, the apex court found no reasonable prospects of success.
“The Constitutional Court has considered the application for condonation and the application for leave to appeal and has concluded that there is no adequate explanation for the applicant’s delay in bringing the application for leave to appeal and there are no reasonable prospects of success on the merits of the application for leave to appeal.
“Condonation must be refused and, as a consequence, the application for leave to appeal fails. The Court has decided not to award costs,” it ruled.
The Johannesburg-based Gauteng High Court previously dismissed the case.
French arms company Thales also cited lengthy delays that have resulted in an “irremediable infringement of its constitutional rights to a fair trial” in an application to have charges against it dropped and for the company to be acquitted.
Thales’ application was launched in the Pietermaritzburg High Court on Wednesday.
It seeks an order to stop the NPA from persisting with the corruption and racketeering case against it.
In court papers, Thales attorney Cameron Dunstan-Smith said the company pleaded not guilty to all the charges against it in May 2021 and that the case was postponed 16 times due to “no fault of its own”.
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