“Through this application he aims to set in train a series of appellate proceedings which are doomed, and will have the effect of delaying, yet further, the start of his criminal trial on the merits.”
Downer insists that neither the SCA nor the Constitutional Court can, in law, hear any appeal in the “special plea” matter because the issues Zuma has raised — the alleged bias and misconduct of Downer — can only be challenged once, and if, he is convicted and sentenced.
After pleading not guilty to the charges, Zuma raised the special plea in terms of the Criminal Procedure Act, saying Downer had no “title” to prosecute him. However, Koen ruled that “title to prosecute” had nothing to do with bias or misconduct but was rather about “legal standing” or authority to prosecute, which Downer had.
He said Zuma’s complaints about Downer would be more properly raised during the trial. However, Zuma, who laid criminal charges against Downer for allegedly leaking documents containing his private medical information to a journalist, said he should be allowed to lead oral evidence in this regard.
He said Downer’s conduct, if he is found guilty, could mean he could go to jail for up to 15 years and “this would be a fatal blow to his title to prosecute”.
Koen has already made a ruling on the so-called “leak”.
The document, put up in support of a bid for an earlier adjournment of the trial due to Zuma’s ill health, was vague and did not disclose any personal information. It was also put up by Zuma’s own legal team in their papers.