Zuma’s leave to appeal application not in the interests of justice, argues NPA

The National Prosecuting Authority (NPA) on Monday argued that former president Jacob Zuma’s claims that he would not receive a fair trial, due to the involvement of state prosecutor advocate Billy Downer, was entirely “speculative” and not in the interests of justice.

Leave to appeal

Advocate Andrew Breitenbach, acting on behalf of the NPA, argued before the Pietermaritzburg High Court that the state believed that Zuma could only seek to appeal the dismissal of his “special plea” if and when he is convicted in the protracted arms deal corruption trial.

“The proof of the pudding will be in the trial itself. Evidence will be led and once that is done, this court will be in a position to assess the merit of that contention,” Breitenbach said.

Zuma and his legal team, led by Advocate Dali Mpofu, were back in the high court to challenge Judge Piet Koen’s ruling last year that dismissed Zuma’s bid to have Downer recused from prosecuting the arms deal corruption trial.

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Zuma does not want Downer to lead the prosecution of his corruption case because he believes, among other reasons, the prosecutor lacks the independence and impartiality to oversee the trial.

The former president faces multiple charges of fraud and corruption alongside French arms dealer, Thales, over the controversial multi-billion rand arms deal struck back when Zuma was KwaZulu-Natal MEC for economic development, in the 1990s.

Zuma and a representative of Thales pleaded not guilty to the charges.

Downer’s impartiality

Breitenbach argued the questions around Downer’s impartiality, or lack thereof, would be best tested at the end of the arms deal trial, or during the trial.

“We respectfully agree that it’s in the interests of justice that any question about whether Mr Zuma has received a fair trial is best determined by this court at the end of the trial or in its discretion should something happen in the course of the trial,” he contended.

The question of whether there would be an adverse impact on the fairness of Zuma’s trial would become apparent during the course of the trial, Breitenbach added.

“So the interests of justice point to that question being determined not hypothetically or in the abstract, but with reference with what actually happens in the case,” he said.

Breitenbach said it was not in the interests of justice to allow Zuma to appeal his dismissed “special plea”, as his case had poor prospects of success before the Supreme Court of Appeal (SCA) in Bloemfontein.

“The appeal would be a waste of time [and] It will cause further delays,” he said.

Procedural irregularity

Earlier, Zuma’s legal team argued that the procedure adopted by the Pietermaritzburg High Court in the leave to appeal application was irregular.

Mpofu contended that the high court committed an irregularity when it directed the state to submit an answering affidavit.

He said that no statute or rule of court made provision for such an affidavit, including the directive that Zuma’s legal team should submit a replying affidavit.

“In my experience, I’ve never seen anything like that,” Mpofu said.

Judge Koen adjourned the application for leave to appeal to 16 February.

“I hope to be in a position to present at least a summarised judgment and then with the full written judgment to be handed down at the same time,” he said.

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