In one of many arguments raised by Zuma’s legal team in their bid for leave to appeal, they say the judge should have referred the matter for oral hearing at a “trial within a trial”.
Masuku referred to an affidavit by advocate Willie Hofmeyr, now retired head of the Asset Forfeiture Unit, in which he referred to political meddling within the National Prosecuting Authority, specifically between former national director of public prosecutions Bulelani Ngcuka and Leonard McCarthy, the head of the now-disbanded Scorpions.
He said Downer had stated that these allegations did not affect Zuma’s right to a fair trial “and your Lordship agreed that they were insignificant”.
“But they are not going to go away because the NPA does not want to deal with them ... complaint of this nature, of criminal misconduct, ought to concern and horrify the courts.
“He (Zuma) should not have to suffer the indignity of a cooked-up prosecution because of political manipulation. These issues should not have been decided on affidavit ... you needed to have heard the evidence and decided where the rot goes.”
He said Downer was a witness to this “criminal activity” and had done nothing about it.
“Another court may direct in specific terms that this court gives this (special) plea the trial it deserves. It’s in the interests of justice. It will ensure the accountability of the NPA, for a clean prosecution and that the NPA conduct is as serious to the courts as it is to everyone else,” he said.
The state is opposing the application.
It argues that the Criminal Procedure Act does not permit an appeal in a criminal matter ahead of conviction and sentence and the only avenue open to Zuma’s lawyers is to argue before the SCA that it has decided a similar matter relating to the interpretation of “title” incorrectly.
Arguments are continuing.