Zuma’s private prosecution of Downer and Maughan postponed for six months

Former president Jacob Zuma’s private prosecution of state prosecutor Advocate Billy Downer and journalist Karyn Maughan has been postponed to 9 April 2024.

Downer and Maughan were back in the Pietermaritzburg High Court on Wednesday for the private prosecution that Zuma instituted against them.

Zuma is charging the duo with what he’s deemed the unlawful leaking of his confidential doctor’s letter.

The former president is also seeking the removal of Downer from his arms deal fraud and corruption trial.

During proceedings, Judge Nkosinathi Chili ordered that Downer and Maughan need not attend court on the day and may be represented by their lawyers, with the same applying to Zuma.

Sitting in the dock

Earlier, Advocate Dali Mpofu, acting for Zuma, objected to Downer and Maughan not sitting in the dock when proceedings resumed on Wednesday. They were sitting in the public gallery.

Mpofu said Zuma and his lawyers are “here to protect the integrity of the courts” by insisting that Downer and Maughan sit in the criminal dock.

He argued that Downer and  Maughan committed “contempt of court” by not sitting in the dock and maintains that “every minute that passes” in the hearing – without them sitting in the dock – contributes to “voluntary defiance” of the court.

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Mpofu said that Downer and Maughan believe themselves to “be beneath the indignity of sitting in the dock”.

Their counsel, Andrew Breitenbach for Downer and Tembeka Ngcukaitobi for Maughan, argued that they didn’t have to sit in the dock.

After a short adjournment Chili refused Mpofu’s demand that the duo sit in the dock. The judge found their constitutional rights were hanging in the balance and decided to err on the side of caution.

Mpofu attacks the SCA

Mpofu also attacked the Supreme Court of Appeal (SCA) for confirming the KwaZulu-Natal High Court in Pietermaritzburg full bench’s finding that Zuma’s private prosecution was an abusive continuation of his Stalingrad legal strategy, in which he sought to avoid facing trial for corruption in the arms deal matter by bringing multiple legal challenges to the prosecution against him.

He insists the delays in Zuma’s case were not caused by him alone and denies that the cases he pursued were abusive.

Zuma approached the SCA to overturn the Pietermaritzburg High Court judgment which set aside his private prosecution of Downer and Maughan.

The SCA ruled that Zuma’s private prosecution against Downer and Maughan was an abuse and should be set aside.

Enforcement appeal

Downer and Maughan subsequently lodged an enforcement appeal, asking the court for an order to block Zuma from further pursuing private prosecution against them while he appealed the matter.

Mpofu was adamant that because Zuma is seeking to appeal the SCA’s enforcement ruling – that confirmed his private prosecution was an abuse that would result in ongoing violations of the rights of Downer Maughan – his private prosecution continues to exist.

However, Breitenbach said even though Zuma had sought to appeal the enforcement of the ruling that set aside his private prosecution, it does not stop that enforcement ruling from coming into effect.

This means the private prosecution remains invalidated until it is successfully appealed.

Criminal case

Breitenbach told Chili that there is “no pending” criminal case before him – and he cannot, therefore, postpone the private prosecution.

He said multiple court rulings have resulted in the private prosecution being “not operational”.

“This matter should not be on today’s roll.”

Ngcukaitobi, representing Maughan, argued that Zuma can appeal the invalidation of his private prosecution but because that invalidation has been enforced by the SCA, his private prosecution remains invalidated until such time as Zuma successfully appeals it.

Under normal circumstances, orders can be suspended pending appeal, unless litigants apply for their enforcement.

ConCourt

With the High Court and the SCA findings against him, Zuma has turned to the Constitutional Court to overturn the order which makes the invalidation of his private prosecution of Downer and Maughan immediately enforceable.

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.

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