Zuma back in Pietermaritzburg high court over Downer dismissal

Former president Jacob Zuma will be back in the Pietermaritzburg high court on Thursday to hear whether he will be granted leave to appeal against a ruling by presiding judge Nkosinathi Chili which dismissed his bid to have lead prosecutor advocate Billy Downer removed from his arms-deal related trial.

If Chili does not grant him leave to appeal to the Supreme Court of Appeal (SCA), it is believed he will petition that court for direct access, leading to more delays in the trial.

While Zuma and his co-accused French Arms company Thales pleaded not guilty to the charges of corruption, fraud, racketeering and money laundering relating to the arms deal in May 2021, Zuma has raised several challenges to Downer’s involvement, all of which he has lost.

This included a failed attempt to privately prosecute him, and journalist Karyn Maughan, for the alleged leak of his confidential medical records.

In September last year, Chili ruled against him in a further application to remove Downer.

He said he was bound by previous court decisions which had found Zuma was abusing court processes and engaging in “Stalingrad” tactics to avoid trial.

Every single argument raised by Zuma, he said, had been previously dealt with by courts, including the SCA.

He said Zuma had anchored his removal request on his private prosecution of Downer for the alleged leak of his private medical information to Maughan. He had argued it was impermissible for Downer to prosecute him while he [Zuma] was prosecuting Downer at the same time.

But Chili said this was not the case: “As things stand, there is no private prosecution. All his attempts have been unsuccessful.”

In arguing for leave to appeal earlier this year, Zuma’s advocate Dali Mpofu said Downer would be called as a witness by Zuma in the criminal trial when the issue of the “leak” is raised by the defence.

The fact Downer would be “a witness in his own trial” meant he should be removed as prosecutor and the SCA might well agree with this if it heard the appeal.

Mpofu said while the private prosecution was no longer active, “the grudge is not tied to the outcome”.

The state, in opposing the application, argued that the law precludes mid-trial appeals in criminal matters.

Advocate Andrew Breitenbach said Chili should take note of Zuma’s “Stalingrad litigation strategy”.

He said Zuma had “flogged to death the same points” in his legal bids to stop the prosecution against him and to oust Downer and courts, including the SCA, had used the term “Stalingrad” in dismissing his appeals as being an abuse of process.

Thales has stood silently by for four years. But in February this year it launched an application for an acquittal, which will be argued on Thursday, after the judge has handed down his ruling in Zuma’s leave to appeal application.

In a statement, JG Zuma Foundation spokesperson Mzwanele Manyi said Zuma had filed a conditional application for his own acquittal, should Thales be successful.

In its application, Thales says the charges relate to events which took place almost three decades ago. Thales had pleaded not guilty, and filed a plea of explanation, in May 2021.

Since then the trial had been postponed 16 times “due to no fault of the second accused” and two crucial witnesses, fundamental to their defence, had subsequently died.

The state is opposing this application.

Whichever way Chili rules on this application, it will most likely be taken on appeal meaning while dates were reserved for the trial to proceed this year, it is unlikely that it will begin.

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