Zuma’s counsel argues against his ‘Stalingrad’ tactics to avoid court

Jacob Zuma’s counsel has 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.

Zuma returned to the Pietermaritzburg High Court on Thursday to appeal the dismissal of his latest attempt to force his arms deal prosecutor Billy Downer’s removal from his corruption case.

Downer remains as prosecutor

In September last year, Judge Nkosinathi 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 effectively said Downer would remain as 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.

Private prosecution

The former president also tried but failed to privately prosecute Downer and journalist Karyn Maughan for alleged breaches of the National Prosecuting (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

Zuma filed a series of appeals in a two-decade-long cycle of challenges crusade to privately prosecute Downer and Maughan.

However, the cases were invalidated as an “abuse of process” by multiple courts.

ALSO READ: Thales seeks acquittal after delays and death of witnesses in Zuma case

Stalingrad legal tactics

During Thursday’s court proceedings, Zuma’s counsel, Thabani Masuku, tried to counter the multiple court findings that Zuma engaged in Stalingrad legal tactics to get Downer removed.

Masuku said it was a “blatant lie” that Zuma was responsible for the 20-year delay in his trial and accused Downer of not “presenting a fair picture of what went wrong in this case”.

“What takes the cake for us, is that the 20-year-delay Mr Downer says Mr Zuma is involved in it, and that’s a blatant lie. If you look at the facts dispassionately, he was involved in 20 years of avoiding his prosecution.”

‘Downer passionate’

Masuku argued that Downer does not present a “fair picture of what has gone wrong with this particular case”.

“He [Downer] is passionate about presenting Mr Zuma as engaging in Stalingrad tactics in the eyes of the courts, which have in a series of judgements condemned people who engage in Stalingrad tactics. That can’t be right,” he said.

“You cannot consider that to be a prosecutor who is dispassionate, who is involved in a case where the main event is not winning. The main event is really to present the evidence for the courts, to determine whether the person is guilty or not, of course, to try and secure a conviction if they can. But that’s not the main objective.”

Earlier, Zuma’s advocate, Dali Mpofu, argued that – if the former president’s efforts to privately prosecute advocate Billy Downer were malicious – this “grudge” strengthened the case for the removal of his corruption trial prosecutor.

“Remember it was said that that prosecution was malicious and what have you. Well, we say that is a point in our favour because imagine if indeed the prosecution was malicious, then the more reason why Mr Downer should be aggrieved and want to get him [Zuma] because he maliciously prosecuted him.”

ALSO READ: Zuma suffers yet another defeat in private prosecution of Downer and Maughan

Dismiss appeal

The NPA’s counsel, Advocate Andrew Breitenbach argued that Chili should not only dismiss Zuma’s latest appeal application, but should confirm that his trial should continue – despite any appeals that he may launch.

“This case is obviously distinguishable on the fact. None of Mr Downer’s relatives are potential state witnesses. He has, I respectfully submit, conducted the prosecution thus far in a restrained and professional manner, and he has done so while resisting on behalf of the state’s unjustified attempts to remove him.

“And resisting on his own behalf, he even had a private prosecution, which has been held to constitute an abusive process. Listening to the submissions this morning, one can only imagine the discomfort a career prosecutor such as Mr Downer feels when having to face cases of this kind,” Breitenbach argued.

Interests of justice

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”.

“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.”

ALSO READ: ConCourt dismisses Zuma’s private prosecution appeal against Ramaphosa

Thales wants acquittal

Meanwhile, French arms company Thales has 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 is seeking 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”.

Witness deaths

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

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.

Shaik was convicted of corruption in 2005, which led to Zuma being charged, but he is yet to go on trial.

ALSO READ: Karyn Maughan on her battles with Zuma and why she wrote a book about it