Downer says full bench ruling in his favour puts paid to Zuma recusal application

Another attempt by former president Jacob Zuma to oust prosecutor advocate Billy Downer from his arms deal-related trial is without merit and his allegations “unsustainable”.

Downer, in a further affidavit submitted in opposing Zuma's latest bid to remove him, says the recent ruling by three KwaZulu-Natal judges, who found there was no basis for Zuma’s private prosecution of him and journalist Karyn Maughan, effectively puts an end to the pending application for his recusal.

Zuma launched the application after he served summons on Downer and Maughan, charging him with contravening provisions in the National Prosecuting Authority (NPA) Act by “leaking” a document to the journalist containing his personal medical records.

In the recusal application, Zuma contended he could not be prosecuted by someone he was prosecuting. In an initial answering affidavit, Downer again accused Zuma of “playing for time”, by launching yet another baseless application — one of dozens over a 20-year period as part of his “Stalingrad defence”.

Downer argued it was time for the court to put its foot down and rule that the trial should proceed pending any further delays through appeals.

In his most recent affidavit, he now says the recent ruling by judges Gregory Kruger, Jacqui Henriques and Thokozile Masipa — sitting as a full bench in the KwaZulu-Natal division — should signal the end of the matter.

In their ruling on applications by both Downer and Maughan to quash the private prosecutions, the judges said Zuma had not come to court with clean hands and that the private prosecutions were an abuse of process instituted for ulterior purposes.

In their 63-page ruling, the judges went through each of Zuma’s submissions as to why he should be entitled to prosecute the advocate and the journalist, based on the “leaking” allegations, and criticised every single one.

Downer says he had filed the supplementary affidavit, to place this information on record.

He said the recusal application was based on the “mere existence of the private prosecution” and the nature of the charges relating to the alleged leak of the document. The three judges had dealt with and dismissed these. 

“In essence, the judgment sets aside Mr Zuma’s summons and interdicts him from ever pursuing any private prosecution on substantially the same charges as those advanced in the summons,” Downer said.

In essence, the judgment sets aside Mr Zuma’s summons and interdicts him from ever pursuing any private prosecution on substantially the same charges as those advanced in the summons.

—  Advocate Billy Downer

He said the court found the private prosecution to be an abuse of process, an instrument of delay and that the charges were without merit.

Downer said the court had found that to date, no court, including the Constitutional Court, had found that Zuma’s rights have been violated in any way.

He said the judge hearing the recusal application “should follow and apply the full bench judgment as binding ... it is correct on all the issues raised in this case”.

The so-called “leaked document” was submitted to the court by the state and Zuma’s own lawyers, in his bid to have his criminal trial delayed because he was in hospital.

Zuma’s claims that this was unlawful were also dealt with as part of his special plea (which also sought to remove Downer) which was heard by trial judge Piet Koen (who has subsequently recused himself).

Koen, in dismissing the plea, ruled there was no merit to Zuma’s complaint.

He said the letter was a public document, that it was not intended to be confidential nor was it. It did not contain any confidential information about Zuma’s medical condition and it was filed by his own attorneys.

The three judges said they agreed with Koen’s ruling and that there was no prospect of any success in the private prosecution.

They said at the time of the publication of Maughan’s article (based on the document) it had been filed in court three times.

Zuma was aware of this — and of judge Koen’s views on the matter — but he had persisted in the private prosecution.

Zuma has indicated through his foundation that he intends taking the full bench ruling on appeal.

He is expected to file his final affidavit in the recusal application later this week.