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Zuma suffered yet another defeat in a litany of legal challenges to get Downer removed.
Former president Jacob Zuma consults with his legal team in the Pietermaritzburg High Court on Thursday. Picture: X/@nushera
Former president Jacob Zuma’s lawyers have argued that the delays in his arms deal trial have resulted in the deaths of crucial witnesses, saying the case against him should therefore be quashed.
Zuma returned to the Pietermaritzburg High Court on Thursday to have lead prosecutor Billy Downer recused from his corruption trial.
However, Zuma suffered yet another defeat in a litany of legal challenges to get Downer removed.
Judge Nkosinathi Chilli dismissed the application, saying he does not believe Zuma’s right to a fair trial would be compromised if Downer remains as prosecutor.
Zuma instructed his lawyer, Advocate Dali Mpofu, to petition the Supreme Court of Appeal (SCA) to appeal Chili’s ruling.
The former president wants his case against him summarily acquitted if Thales, the French arms company, is successful in its application for an acquittal.
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.
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The former president’s lawyer, Advocate Naba Buthelezi, argued that the state “no longer had a winnable case” against Zuma because so many allegedly crucial witnesses have died.
Buthelezi argued that because one of the witnesses, Thales representative Alain Thétard, is dead, the state won’t be able to use the so-called “encrypted fax” evidence against Zuma, despite the fact that it did not require Thétard’s testimony to prove that the fax recorded a corrupt agreement in the Shaik trial.
“We need to disabuse this court and the public and everybody else of this allegation that the 783 charges of corruption. There’s no such nonsense. It’s never been; we only have 18 counts.”
Buthelezi argued that the state knows it cannot win its case against Zuma but is pursuing it because it is trying “to save face.”
“This must be said, the state now runs this case knowing that they can’t win it. However, they run to save face, because they’ve run a 20-year-plus trial pursuing allegations of corruption of R3 million of change at hundreds of millions of costs to the state.
“Now, having done this thing against the public of spending hundreds of millions to chase an allegation of 20 years ago, that is about R3 million, they can’t just walk away. So now they’re forcing your Lordship to be in this position of where you sit for by dud of trial,” Buthelezi argued.
ALSO READ: Zuma’s bid to force Downer’s removal from arms deal case dismissed
In court papers, the National Prosecuting Authority (NPA) argues that Zuma’s attempt to rely on the deaths of Thales officials Pierre Moynot and Thétard to seek an order quashing his prosecution on the basis that he can no longer adduce or challenge their evidence is “fatally undermined” by a pivotal point he was allegedly personally involved in the corruption he stands accused of.
It is the state’s case that Shaik facilitated a bribe agreement between Zuma and Thales, where the then deputy president was promised R500 000 a year, in exchange for his political protection for any potential investigation into the multibillion-rand arms deal.
The NPA said Zuma could testify in his defence.
“As appears from the indictment, the State alleges that he (Zuma) personally was involved in the racketeering, corruption and frauds with which he has been charged, and it is open to him to testify in his own defence as Mr Shaik did in his criminal trial.”
However, Mpofu argued that it would compromise Zuma.
ALSO READ: Thales seeks acquittal after delays and death of witnesses in Zuma case
In response to arguments made by NPA counsel Andrew Breitenbach on Thursday, Mpofu said Zuma testifying in his trial would amount to him bolstering the State’s case.
“What is that? Of course, it’s open to Mr Zuma to testify, but he has no legal duty to do so, and this case will never go past Section 174.”
This is about the section of the Criminal Procedure Act that deals with accused seeking summary acquittals at the end of the State’s case, on the basis that there isn’t sufficient evidence to justify a response from them.
Mpofu suggested that the State did not have enough evidence to require Zuma to testify in his defence – an argument that the State has strongly denied.
He argued that if the NPA had prosecuted Zuma alongside Shaik, that trial would have concluded in 2005.
While Shaik denied any wrongdoing, he was found guilty of involvement in that corrupt arms deal scheme.
Mpofu also argued that the state’s Stalingrad litigation accusations against Zuma, which several courts have upheld, are a “scratched record” and the same “tired old song”.
In February 2025, Zuma’s counsel argued against multiple court findings that the former president had engaged in Stalingrad legal tactics, and had pursued futile cases and appeals with the sole aim of delaying his arms trial and avoiding his day in court.
During Thales’ arguments, advocate Barry Roux representing the French arms company stated that there were no witnesses who could give evidence in Thales’ defence because the officials who could have testified “are now dead”.
Downer suggested that Thales could call Shaik.
“Ja right,” responded Roux, indicating to all the adverse credibility findings made against Shaik in his corruption trial, where he was found guilty of bribing Zuma.
Chili postponed the matter to 3 June for judgment.
Speaking to MK party supporters after the day’s court proceedings, Zuma said the arms deal was concluded under the watch of former president Nelson Mandela and his then deputy, Thabo Mbeki.
Zuma added that he was in the KZN provincial government and was not involved with national governance matters at the time.
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