Endless litigation by former president Jacob Zuma to delay or obstruct his trial related to the arms deal had become a public joke, advocate Geoff Budlender submitted on Thursday at the Supreme Court of Appeal.
He said Zuma was a vexatious litigant, and his bid to privately prosecute lead prosecutor Billy Downer — and another attempt to remove Downer as prosecutor which would be heard next month — was because he was “running out of road” after a series of failed court applications and appeals.
Zuma, who was in court, is intent on privately prosecuting Downer and journalist Karyn Maughan for what he alleges are contraventions of the NPA Act, in that Downer leaked a document containing what he claimed was his personal medical information to the journalist.
Three KwaZulu-Natal judges set aside the summonses and interdicted Zuma from initiating any further private prosecutions against Downer and Maughan on the same charges.
The judges said the private prosecution was baseless, an abuse of court and was instituted with ulterior motives.
However, Zuma noted an intention to apply for leave to appeal, which would have suspended the judgment, meaning the private prosecution could continue in the interim.
Downer and Maughan then successfully secured an order in terms of the Superior Courts Act to immediately enforce the full-bench ruling in spite of the appeal.
Zuma, in terms of the same act, has an automatic right to appeal this order. And this is what was argued before the Supreme Court of Appeal on Thursday.
Budlender, for Downer, said the private prosecution was based on “trumped-up charges” which could not succeed.
He described Zuma’s affidavit in the matter as an “extraordinary torrent of abuse and insult directed at Downer”.
“I have literally never seen anything like it in court papers. The focus was why Mr Downer is a very bad person.”
Budlender said all of Zuma’s criticisms have been raised previously in his unsuccessful special plea (in which he sought to oust Downer). They had been carefully analysed by (former arms-deal trial) judge Piet Koen, who found every one to be unfounded, including the issue of the alleged “leak” of the document.
He said Zuma’s attempt to appeal Koen’s ruling had been turned down by every court.
“This is the reason for the private prosecution. It is to get rid of Downer. That is ulterior purpose and the courts will stop that.
“Zuma believes he is entitled to obstruct and delay his prosecution unless he is removed.
“He appears to hold the view that he is entitled to have a say in who prosecutes him. If his strategy succeeds he will become the basic tool in the tool box of any litigant to lay trumped up charges and then spin it out.”
He said if the court did not dismiss Zuma’s appeal against the enforcement ruling, the abuse would continue.
“The timing of the private prosecution is significant. Mr Zuma’s application for a permanent stay was refused, his attempts to appeal against that were dismissed. His special plea was also dismissed.”
“The trial was about to begin. He had run out of road.”
Budlender said the court should dismiss the application with punitive costs, but on the costs issue, he said: “They won’t be paid anyway.”
Tembeka Ngcukaitobi, for Maughan, said Zuma was engaged in a “cynical abuse of the legal system”. The private prosecution of Maughan, he said, was an attempt to stop her reporting on his cases and was a “manipulation of the law”.
“This has implications beyond these two parties. It has implications for the rule of law and the authority of judges.”
He said Maughan had had to appear in court — “and seeing her in the dock is legitimising the abuse”.
“That harm can never be restored.”
Dali Mpofu, for Zuma, however claimed that the oft-reported “Stalingrad” strategy attributed to his client was just “mumbo jumbo” created by the media.
“They [Downer and Maughan] are guilty of Stalingrad. They should have their day in court [in the private prosecution],” he said, questioning why they had opposed the application.
He said Downer had been elevated to some “bogeyman, like the indispensable Superman”.
“What if he was hit by the proverbial bus. Does that mean the prosecution (against Zuma) would suddenly disappear. That would be ridiculous.”
He said the KwaZulu-Natal judges had given a “half-baked judgment” and delivered a rushed decision.
Though the KZN judges had not granted leave to appeal the main judgment, he said the prospects of success on appeal (on petition to the SCA and the Constitutional Court) “were good” and those courts might find there was no abuse or ulterior purpose.
Judgment was reserved.
Downer and Maughan are due to appear again in court in the private prosecution matter in early November.
Zuma’s application for the removal of Downer — essentially on the basis that he cannot be prosecuted by someone he is prosecuting — has been set down for hearing in late October.
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