Downer and Maughan not in the dock, but Zuma's private prosecution still on the roll

Senior state prosecutor Billy Downer and journalist Karyn Maughan were spared the indignity of sitting in the dock on Wednesday when former president Jacob Zuma’s private prosecution against them was back in court.

While their lawyers did not succeed in getting the case struck from the roll, Pietermaritzburg high court judge Nkosinathi Chili adjourned it to April next year, directing that this was a “holding date” and Downer, Maughan and Zuma did not have to attend court on that day.

The postponement was to allow the finalisation of Zuma’s appeals against scathing judgments that the private prosecution was an abuse based on ulterior motives to delay his arms deal-related trial and get Downer removed as lead prosecutor.

Three judges in KwaZulu-Natal also found there was no merit in Zuma’s charges that they had contravened the National Prosecuting Authority (NPA) Act when Downer allegedly leaked a document, containing his personal medical details, to the journalist. They set aside the summonses.

Zuma then lodged an application for leave to appeal this ruling, which resulted in the automatic suspension of the judgment.

Downer and Maughan then secured another court order, putting that order in effect, pending appeal.

In terms of the Superior Courts Act, Zuma exercised his right to automatically appeal that to the Supreme Court of Appeal (SCA). Last month, in another scathing judgment, that court rejected his appeal.

Zuma now says he is appealing this in the Constitutional Court — and insisted Downer and Maughan appear in court on Wednesday in the private prosecution because, he claimed, it was still very much alive.

Zuma’s advocate Dali Mpofu was seething when Downer and Maughan declined to get into the dock and complained about Chili’s ruling allowing them to sit elsewhere, even after the ruling, saying “we are making history here”.

“I have personally never experienced anything like it,” he said, accusing them of being “deliberately defiant” — and their stance as being “pure arrogance” and “contempt of court”.

However, advocate Andrew Breitenbach, for Downer, and advocate Tembeka Ngcukaitobi, for Maughan, argued that the SCA ruling had essentially done away with the private prosecution because it had confirmed the KZN ruling putting the order doing away with the summonses into effect.

They also argued it was “the end of the road” for Zuma with regards to the execution order because the law did not allow for a further appeal to the ConCourt.

Their clients, they said, were thus no longer “accused persons” and Zuma could only revive his private prosecution should his appeals against the main (KZN) judgment succeed.

Ngcukaitobi said the SCA had made it clear the continued presence of Maughan [in court] was an abuse and every time she had to appear her personal liberty and dignity was eroded.

“She is not accused merely because Mr Zuma says so, in the face of all the rulings by the courts,” he said, suggesting if she were forced to sit in the dock it would be akin to “aiding and abetting the contemptuous conduct of Mr Zuma”.

After hearing argument, Chili said in circumstances where constitutional rights were at stake it would not be appropriate or just to force Downer and Maughan to sit in the dock.

“It is better to err on the side of caution,” he said, rejecting Mpofu’s application.

The next issue was whether the private prosecution should be removed from the roll or adjourned and under what circumstances.

Mpofu insisted the ConCourt would give Zuma leave to appeal and rule in his favour. He described the SCA decision as being “so bad”.

He said he did not want the private prosecution to “fizzle away” and there was no legal basis for it being removed from the roll. He suggested it be adjourned until April 9 next year to allow the finalisation of the appeals and that Downer and Maughan be directed to appear in court on that day.

But again Breitenbach and Ngcukaitobi argued the appeal to the ConCourt was a nullity and their clients should not even be in court that day, let alone on any other occasion.

They said, however, that if Chili did not want to strike the case from the roll, they agreed it be adjourned until next year, asking that their clients do not have to appear on that date.

Mpofu was having none of it. “They must be forced to appear,” he said. “This is an attempt to make this court a crime scene.”

Chili adjourned the case until April 9, ordering only legal representatives had to attend court.

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