Zuma back in court to hear decision on Downer recusal

Former president and MK party leader Jacob Zuma will find out on Thursday whether his appeal application for the recusal of his lead prosecutor, Advocate Billy Downer, in his arms deal corruption trial was successful.

Judge Nkosinathi Chili is expected to hand down his ruling on Thursday in the Pietermaritzburg High Court.

Chili reserved judgment in the matter in February, after legal arguments from the State and Zuma’s legal team.

Thales

Chili will also preside over arguments in the application for the acquittal brought by French arms company Thales.

Thales 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.

It is seeking an order to stop the National Prosecuting Authority (NPA) from continuing to pursue the corruption and racketeering charges against it.

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Witnesses

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”.

He added that since Thales was indicted in 2018, two key witnesses who are fundamental to its defence passed away.

Seeking acquittal

In his February argument for Downer’s recusal before Judge Chili, Zuma said that there were reasonable grounds for him to fear that Downer might hold a grudge against him, particularly since Zuma brought a private prosecution against the prosecutor for alleged media leaks.

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Earlier this month, Zuma filed an affidavit that supports the application brought by Thales on 5 February 2025, seeking to be acquitted on the basis that the state “misconstrued Thales’ cause of action as being based on an infringement of its right to have its trial begin and conclude without unreasonable delays.”

Zuma’s latest application before Chili follows the dismissal in 2021 by then-trial court judge Piet Koen of the former president’s special plea to have Downer removed as prosecutor.

Billy Downer

The former president’s legal team raised 14 grounds for Downer’s recusal, including his claim that the prosecutor had been party to the unlawful leaking of court papers containing a sick note from his military doctor, Brigadier Mcebisi Mdutywa, to journalist Karyn Maughan.

Koen dismissed them in October 2021 after finding that many were “based on speculation or suspicion or are based on inadmissible hearsay evidence and not on fact”.

“The ultimate question to be answered is therefore not whether the prosecutor is not independent or not impartial or biased or not sufficiently independent or impartial, but whether the accused will ultimately receive a fair trial.

“Even in limited instances, they might have at best qualify as possible irregularities, these irregularities were not as such to require Mr Downer‘s removal as a prosecutor and did not deprive him of the title, even in the extended sense of that word contended for by Mr Zuma to prosecute,” he said.

Stalingrad strategy

In arguments before Chili in February, the State submitted that Zuma’s application to appeal the earlier ruling was a continuation of his so-called Stalingrad strategy, aiming to delay the criminal proceedings and avoid the charges altogether.

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.

Arms deal trial

While the state’s case against Zuma was declared trial-ready four years ago, his trial has been delayed by his repeated failed efforts to force the removal of Downer.

The 83-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.

The state’s case is 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.

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