Zuma applies to Supreme Court to kick Downer off the arms deal case

Former president Jacob Zuma has shot back at Judge Piet Koen’s dismissal of his application for leave to appeal the outcome of his special plea, insisting “the interests of justice demand the appeal be entertained” in a petition to the Supreme Court of Appeal (SCA).

Last year, Zuma raised a special plea, challenging the title of state advocate Billy Downer and the National Prosecuting Authority to try him in the arms deal case, arguing he was the victim of prosecutorial bias and could not be guaranteed a fair trial.

In the KwaZulu-Natal High Court in Pietermaritzburg, Koen last October dismissed the special plea, finding the word “title” referred to a prosecutor’s standing or authority to prosecute. In January, he dismissed Zuma’s application for leave to appeal and ordered the trial must proceed.

He found it had already been “considerably and unreasonably” delayed, and an appeal was not in the interests of justice.

Koen, in his January decision, maintained that whether there had been any infringement of Zuma’s fair trial rights would be best determined at the end of the trial, adding it was “inimical to the interests of justice” to permit an appeal in which the prospects of success were poor, which he found they were in Zuma’s case. In his petition to the SCA, filed on Tuesday, Zuma was adamant Koen was wrong.

“In this particular case, the interests of justice demand the appeal be entertained because it has good prospects of success and subjecting the accused person to the prejudice of enduring a lengthy trial with a prosecutor who may later be found to have lacked title to prosecute would self-evidently lead to injustice.” He labelled Koen’s interpretation “an absurdity”.

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“In essence the narrow interpretation favoured by the court a quo renders the phrase ‘title to prosecute’ … to be synonymous with the written authority which is sometimes required before a prosecutor can act. “This is an absurdity because had that been the case, then the legislature would have used the words ‘authority to prosecute’,” he argued.

“It should be obvious that ‘title to prosecute’ is a much wider phenomenon than mere authority.”

Zuma in his petition was also applying for leave to adduce new evidence in support of a criminal complaint he’s since lodged against Downer, which Koen also refused in January.

“The relevance of the evidence is self-evident. The possibility of a suspect in a criminal case opened by one person, also acting as an ‘independent’ prosecutor against the complainant, puts the notion of prosecutorial independence at the centre of the special plea,” he said in his petition.

He wants the SCA to set aside Koen’s dismissal of an application for a “special entry” centred on what he alleges were irregularities or illegalities, as well as of an application for the reservation of several questions of law for determination by the SCA.