Zuma fails to remove Downer but says he will appeal again

Former president Jacob Zuma has again failed to remove lead prosecutor advocate Billy Downer from his arms-deal corruption case.

But more appeals are in the offing and the matter has still not been set down for trial for the hearing of evidence.

Pietermaritzburg high court judge Nkosinathi Chili on Wednesday dismissed Zuma's application, saying he was not persuaded Zuma had succeeded in establishing retention of Downer could infringe on his right to a fair trial.

However, he would only give his reasons for the ruling “at the end of the trial”.

This flummoxed Zuma’s counsel advocate Dali Mpofu, who indicated he wanted the reasons in order to take the ruling on appeal.

However, later in his submissions, he said he had consulted Zuma — who had been excused from attending Wednesday’s proceedings — the day before and he had instructions to appeal the ruling if it did not go his way.

“We are to bring an application for leave to appeal. What we did not expect was the reasons are not given now. It doesn’t change much of the substance of what we do next,” he said, suggesting the trial be “adjourned indefinitely” for “case management” to determine the way forward, and the availability of counsel.

This suggestion was made after Downer asked that the judge set trial dates immediately.

He said the National Prosecuting Authority (NPA) wanted to get on with the trial which had been delayed for six years by Zuma’s various applications.

“We want to start leading evidence. We are in March 2024 with a trial which has been subject to abuse and delays for six years.

“This is an unusual matter and just as various courts make various rulings the state argues strongly this court should take the view that this is a matter of great importance and in the pecking order of cases this should be accorded the highest priority and if other cases have to be moved, then this court should consider such an order,” he said.

Mpofu, in usual dramatic style, said he was “astounded” and “trying to contain himself” to hear Downer had spoken to the legal representatives of Thales (accused number two) about availability of counsel when he had not been afforded the same courtesy.

Referring to a comment by Downer that no-one, not the state, not the court, nor the public, wanted further delays in the matter, Mpofu said: “There is the matter of an accused who is not here.”

He said the legal team could not be forced to commit to anything in the absence of Zuma.

On the suggestion of Chili, both sides agreed to postpone the trial until a “pretrial conference” on May 17.

Zuma’s attempt to remove Downer, based on bias or the apprehension of bias, was in essence a second bite of the same cherry after a similar application in terms of a “special plea” was dismissed by now recused trial judge Piet Koen.

His appeals against that were dismissed by the Supreme Court of Appeal (SCA) and the Constitutional Court.

The point of difference in the matter before Chili was the subsequent launching of a private prosecution against Downer and journalist Karyn Maughan for allegedly contravening the NPA Act, the allegation being that Downer leaked a document containing Zuma’s private medical records to Maughan.

He argued he could not be prosecuted by someone he was prosecuting.

However, the private prosecution has been set aside as a “meritless abuse of process”, a finding later endorsed by the SCA which labelled it “Stalingrad tactics”.

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