Former president Jacob Zuma must pay a deposit of at least R1m if he wishes to proceed with his private prosecution of senior state advocate Billy Downer, SC.
Downer, the lead prosecutor in Zuma’s arms deal-related corruption and fraud trial, says that the R90,000 Zuma has so far put up is “negligible and inadequate” as security for his costs, should the private prosecution go ahead and run for 10 court days, during which Zuma intends to call as many as 23 witnesses.
Last month, Zuma made good on his threat to institute the private prosecution against Downer and News24 journalist Karyn Maughan for the alleged “leak” of documents about his medical condition ahead of an application for an adjournment of his criminal trial on the grounds of ill health.
The document was attached to Zuma’s and the state’s papers, which came before trial judge Piet Koen in open court.
It did not disclose the nature of his ailments.
Zuma had previously laid criminal charges against Downer and Maughan relating to the alleged “leak”, but the NDPP declined to prosecute, issuing a nolle prosequi certificate which paved the way for Zuma to initiate the private prosecution proceedings.
Both were recently served with summonses to appear in the Pietermaritzburg high court on October 10 this year.
In anticipation of the hearing, Downer has now lodged an application for a judge to “review” the amount Zuma has paid as security.
I have no confidence that he will in future be able to settle the costs incurred for my defence, in the absence of the security I require.
— Advocate Billy Downer
The Criminal Procedure Act (CPA) compels a “private prosecutor” — in this case Zuma — to put up funds which those he accuses can use in defending the charges against them — or reclaim them in the event of their acquittal.
And Downer says he needs at least R1m.
It is likely Maughan will make a similar application for a similar amount.
In the application, Downer says Zuma must come up with cash — or provide the court with a bank guarantee for the money.
He says the CPA stipulates that no private prosecution can proceed until the private prosecutor puts up the money as security.
He said the R90,000 Zuma had deposited included the R2,500 to cover the court costs.
The remaining R87,500 was meant to cover the costs which he and Maughan may incur in their defence — that is R43,750 each.
“This amount is negligible and inadequate. The security must be sufficient to cover an accused probable costs ... This falls substantially short of this standard,” Downer said.
He said he was vigorously defending the charges.
As lead prosecutor in the criminal trial against Zuma, he, his team and the NPA believed the private prosecution to be an “abuse of process” and the allegations to be without merit.
“They are designed to delay the prosecution (on the criminal charges), intimidate me and the prosecution team to avoid the trial proceeding on its merits.”
Downer said he and the NPA had engaged the services of a senior advocate — who charges R54,000 a day — and two juniors who jointly charged R45,000 a day.
“The witness list comprises 23 witnesses. In the absence of further particulars I have requested, I am unable to estimate the number I will call in my defence, should that stage of the trial eventuate,” Downer said.
“Nevertheless, I estimate the trial is likely to run for 10 court days.
“There are also the costs I have already incurred preparing for trial.
“I submit a reasonable estimate for costs which I may incur are R504,000 for senior counsel fees on trial, R450,000 for junior counsel fees, consultation fees of R99,000 and other contingencies of R5,000. That amounts to R1,058,000.”
Downer said the issue of security for his costs was more pressing given that last month, the curator of VBS Mutual Bank had secured an execution order against Zuma’s movable assets for his nonpayment of a loan.
“I have no confidence that he will in future be able to settle the costs incurred for my defence, in the absence of the security I require,” Downer said.
Downer’s assertion relates to an order granted in the Pietermaritzburg high court against Zuma by the bank, placed into liquidation in March 2018, seeking to recover R6.5m (said to be R7.8m with interest) he owes after he stopped paying his monthly instalments.
Zuma borrowed the money to comply with a ruling by then public protector Thuli Madonsela, which was confirmed by the Constitutional Court, that he must pay back some of the R250m paid by the state for “security upgrades” at his Nkandla homestead, including a swimming pool and an amphitheatre, when he was president.
Zuma has until September 29 to file a response to Downer’s application.
Zuma, who is now 80, was sentenced by the ConCourt to 15 months in prison for contempt of court after he ignored an order by the apex court to appear before the Zondo commission of inquiry into state capture.
He began serving his sentence in July last year but was soon transferred to a medical facility.
He was controversially released from detention on medical parole by then correctional services commissioner Arthur Fraser.
The trial against him and French arms company Thales has been on hold while Zuma has repeatedly attempted to oust Downer from the case.
If successful, it could result in his acquittal.
Zuma claims Downer is biased and prejudiced against him and therefore has no “title to prosecute” him in terms of the Criminal Procedure Act.
Judge Koen has already ruled against him in this regard and denied him leave to appeal. Zuma then petitioned the Supreme Court of Appeal and was unsuccessful there.
His latest application is pending before the ConCourt, where he seeks an order compelling the SCA to hear his appeal.
Jude Koen has set October 17 as another “holding date”, for the outcome of the ConCourt matter and to determine the way forward.
However, given the pending private prosecution, Zuma’s legal team will undoubtedly argue now that he cannot be prosecuted by Downer because he is prosecuting him.
Zuma and Thales are facing charges of racketeering, corruption, money-laundering and fraud relating to the arms deal.
Zuma is accused of receiving about R4m via his former financial adviser Schabir Shaik to help Thales secure defence contracts. Shaik was convicted in 2005 but was released on medical parole in 2009.
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