MK party leader Jacob Zuma. Picture: Gallo Images/Daily Maverick/Felix Dlangamandla
Former president Jacob Zuma is expected to bring another application to remove prosecutor Billy Downer from the matter when his corruption trial returns to the Pietermaritzburg High Court on Thursday for a pre-trial hearing.
In May, Judge Nkosinathi Chili confirmed that KwaZulu-Natal High Court Judge President Thoba Portia Poyo-Dlwati had allocated dates from April to September 2025 for Zuma’s trial.
Zuma is charged alongside French arms company Thales, facing multiple charges of fraud, corruption, money laundering and racketeering linked the multi-billion rand defence procurement project programme in 1999.
The former president was declared trial-ready three years ago, but the matter has been delayed by his repeated appeals and efforts to remove Downer from the matter.
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There is also an ongoing Constitutional Court application to have Downer prosecuted for allegedly leaking Zuma’s medical records to News24 journalist Karyn Maughan.
While Zuma’s legal team intends to revive an application to have Downer removed from the matter, Chili previously denied the application, but the former president wants permission to appeal, a process likely to again delay the case further.
Zuma objected to Downer leading his prosecution on behalf of National Prosecuting Authority (NPA), accusing the advocate of prosecutorial bias, claiming that Downer lacked the title to prosecute him.
In arguments before Chili in October last year, the state argued that Zuma’s bid to remove Downer was already dead in the water, because the pillars of his case “have been repeatedly and emphatically dismissed” in six different court rulings.
In March, Chili dismissed Zuma’s latest bid after finding that the former president failed to show that Downer’s continued presence as his prosecutor would violate his fair trial rights.
“Having heard submissions made by counsel, the relevant case law and most importantly the four pillars relied upon by Mr Zuma, I am not persuaded that Mr Zuma succeeded in establishing that the retention of Mr Downer as the prosecutor in this matter could prejudice his right to a fair trial [as] enshrined in section 35, subsection 3, of the Constitution.”
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Chili did not provide reasons for the decision, saying he will share them in his final judgment at the end of the trial.
However, Zuma’s legal team submitted a notice of application for leave to appeal, saying he’d like to appeal to the Supreme Court of Appeal (SCA) or a Full Bench of three high court judges.
This application would need to be decided before the court proceeds with the trial, meaning another inevitable delay in the start and finalisation of the case.
In the application document, Zuma’s team argued that Chili made a mistake when failing to consider “evidence of Mr Downer no longer being ‘personally detached’ and dispassionate about the trial itself”.
In the matter before the Constitutional Court, Zuma wanted to appeal the interdict against his private prosecution of Downer and Maughan.
Zuma initiated a private prosecution against Downer and Maughan over sharing public court documents, including a medical note, in September 2022.
According to the former president, this was in violation of the National Prosecuting Authority (NPA) Act.
However, Downer and Maughan challenged the private prosecution on the basis that Zuma’s medical information was publicly available in court documents and did not include confidential details.
Three full benches confirmed that the Pietermaritzburg High Court’s finding in June 2023 that the private prosecution of Downer and Maughan for alleged breaches of the NPA Act by leaking his confidential medical information in August 2021 was an “abuse of the process of court”, had been pursued for an ulterior purpose, and was part Zuma’s ‘Stalingrad strategy’ to avoid trial for the arms deal corruption matter.
Zuma was dealt a blow in February after the apex court unanimously dismissed his private prosecution bid against Downer and Maughan.
The ConCourt order meant that the former president could not pursue his private prosecution bid against the duo pending his appeal process against the initial order by the Supreme Court of Appeal (SCA).
The SCA’s scathing assessment of Zuma’s “hopeless” private prosecution found the former president’s appeal as being a continuation of his Stalingrad strategy to avoid his corruption trial.
SCA President Mahube Molemela dismissed Zuma’s bid in a two-page order.
Molemela found “no exceptional circumstances warranting reconsideration or variation of the decision refusing [Zuma’s] application for leave to appeal” the Kwazulu-Natal High Court in Pietermaritzburg’s invalidation of his private prosecution.”
After Zuma unsuccessfully tried to appeal the ruling in the SCA, he approached Molemela directly for his case to be reconsidered, but this bid was also dismissed.
Zuma’s advocate, Dali Mpofu, said he had taken “detailed instructions” from the former president “to proceed with an application for leave to appeal” the ruling which they did.
The former president approached the Constitutional Court in April to revive his private prosecution case against Downer and Maughan, hoping the Court will overturn a decision by the SCA so the prosecution can continue.
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Zuma has also taken his private prosecution case against President Cyril Ramaphosa to the Constitutional Court.
In July last year, a full bench of the Gauteng High Court set aside Zuma’s private prosecution of Ramaphosa, saying it was unlawful and unconstitutional. The court refused him leave to appeal in September, saying an appeal had no prospects of success.
Zuma then approached the Supreme Court of Appeal (SCA), but this was rejected in February with the court saying in a single line that “the requirements for special leave are not satisfied”.
Not satisfied, Zuma applied for a “reconsideration” by the SCA in May, but its president Molemela refused to entertain his appeal in his failed bid to privately prosecute Ramaphosa.
However, the former president is now trying to appeal that decision.
During proceedings, Advocate Dali Mpofu, representing Zuma, said because the SCA in May dismissed a reconsideration application as well, they will be heading to the ConCourt.
The former president initiated private prosecution against Ramaphosa on the eve of the African National Congress (ANC) national elective conference on 15 December 2022.
He accused Ramaphosa of being an “accessory after the fact” in the case of Downer and Maughan for an alleged breach of the NPA act.
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.
The National Prosecuting Authority (NPA) also claimed Shaik facilitated a R500,000 a year bribe for Zuma from 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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