One big Downer: How can I be prosecuted by an accused? asks Zuma

Former president Jacob Zuma’s legal team says criminal charges he laid against lead advocate Billy Downer regarding the leak of his medical reports to a journalist were under investigation by the National Prosecuting Authority “as one would expect”.

Zuma laid a criminal complaint in October last year against Downer alleging he and other NPA officials had interfered in his prosecution.

He specifically cited examples of Downer giving journalist Sam Sole information in June 2008, and of giving journalist Karyn Maughan court documents, which contained his medical records, last year.

Downer denies leaking any information to Sole. He says his colleague gave Maughan copies of court documents to assist her with reporting on the court proceedings to be held the following day in which Zuma was seeking an adjournment because of ill health. Zuma’s lawyers had filed the medical report.

Zuma claimed in his police statement that none of these allegations of criminal conduct had been investigated by any law enforcement agency up to now.

He said leaking sensitive and private information was a criminal offence “punishable by a severe sentence”, in terms of the NPA Act.

On Monday, adv Dali Mpofu told Pietermaritzburg high court judge Piet Koen that last month he had received a letter from the NPA confirming the matter was under investigation.

Mpofu was arguing for leave to appeal a ruling by Koen dismissing Zuma’s bid to block Downer from prosecuting him on charges of fraud, corruption and money laundering relating to the multibillion-rand arms deal.

Zuma challenged Downer’s “title” to prosecute, alleging he was biased and accusing him of misconduct, which would result in him not getting a fair trial.

But Koen ruled that “title” only referred to a prosecutor’s standing, authority and authorisation, which Downer had. Zuma’s lawyers are intent on getting a wider interpretation from the appeal court — that it includes the issue of fair trial rights — which could see Downer being removed from the case.

As part of the leave to appeal application, Zuma is seeking to be allowed to introduce further evidence before the SCA relating to Downer’s alleged conduct, including the fact that he is now a “suspect in a criminal case”.

This, he believes, will bolster his chances on appeal.

The state is opposing this. It says it is irrelevant to the issues raised in the special plea and, any way, the allegations only amounted to irregularities.

Mpofu argued, however, that “fact is stranger than fiction” and questioned how Downer, as a suspect, could be an impartial prosecutor in the case where his now accuser was the accused.

“How can a complainant in a criminal matter be prosecuted by a suspect?”

Adv Andrew Breitenbach, for the state, argued that leave to appeal should not be granted and was not permissible before conviction and sentence in terms of the Criminal Procedure Act.

He also submitted that Zuma’s chances on appeal were poor and it would probably be a waste of time and not in the interests of justice.

Breitenbach said the trial had already been delayed unreasonably and the special plea was just the latest in a “long line” of preliminary matters raised by both Zuma and his co-accused, French arms company Thales.

Mpofu, in his closing argument, shot back at this, saying his client was only exercising his rights.

To deny him leave to appeal, and continue with the trial, would be a “huge waste of ratepayers’ money” and time for all involved.

He said Zuma perceived that Downer harboured ill feeling towards him.

“To those commentators who accuse us ... they fail to answer one question. If it is Zuma’s intention (to put obstacles in the way of the trial), why does the NPA not call his bluff and remove Downer and bring someone else in to prosecute?

“Are there no other prosecutors in this country? If anyone is delaying this trial unnecessarily, it is them (the NPA),” he said.

Koen said he hoped to hand down his ruling in the application on February 16.

Zuma and Thales have both pleaded not guilty to racketeering, corruption, money laundering and fraud charges relating to the multibillion-rand arms deal. Zuma is accused of receiving about R4m via his former financial adviser Schabir Shaik to assist Thales to secure the defence contracts. Shaik was convicted in 2005 but was released on medical parole in 2009.