With four losses under his belt, Zuma prepares for round five against Downer and Maughan

Friday the 13th of October was not a good day for Zuma.

He got the biggest ever battering from the Supreme Court of Appeal, which in a unanimous ruling described the private prosecution of advocate Billy Downer and journalist Karyn Maughan as abuse of process “for multiple reasons”, that it was part of his Stalingrad strategy to obstruct and delay his arms-deal related trial.

The court said even on Zuma’s own version, the private prosecution was a “patently hopeless case and was obviously unsustainable”.

But in spite of four court rulings, which effectively denounced his private prosecution attempts, he is still insisting that they need to get in the dock on November 1.

The basis for Zuma’s charges against the prosecutor and journalist is the alleged “leak” of a document containing what he claims were his personal medical details, a breach of the NPA Act, or so Zuma says.

The document was put up by Zuma’s own legal team in support of an application for a postponement of his criminal trial before (then) trial judge Piet Koen.

In a judgment penned by Koen in Zuma’s failed “special plea” (his first attempt to remove Downer from acting as lead prosecutor in the trial), the judge said the document was not confidential nor was it intended to be. He said he doubted that there had been any breach of any law.

But Zuma pressed ahead and instituted the private prosecution.

For the high court to have allowed the suspension of the main judgment pending an appeal would have been mutually incompatible with the conclusion reached by it that the private prosecution constituted an abuse

—  Judge Nathan Ponnan

This led to Downer and Maughan’s successful applications for orders setting aside the summonses and interdicting Zuma from ever instituting private prosecutions against them on similar grounds.

The three KwaZulu-Natal judges described the private prosecution as baseless, an abuse of court and instituted with ulterior motives.

The next move on Zuma’s chess board was to apply for leave to appeal that ruling, which 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, invoked his right to automatically appeal this order, which meant Downer and Maughan had to appear in court in August.

Now the SCA has dismissed this appeal, and ordered Zuma to pay punitive costs for making “scandalous” allegations against the KwaZulu-Natal judges.

“For the high court to have allowed the suspension of the main judgment pending an appeal would have been mutually incompatible with the conclusion reached by it that the private prosecution constituted an abuse,” judge Nathan Ponnan, who penned the judgment, said.

“If Mr Zuma’s private prosecution is indeed an abuse of the process, as the high court held, then it follows that allowing it to be enforced pending an appeal will prolong and perpetuate that abuse. This will make a mockery of the high court’s judgment and will undermine confidence in the judiciary’s capacity to control its own judgments and to protect individuals from an abuse of process, including an unlawful, abusive and oppressive private prosecution,” he said.

With four wins under their belts, Downer and Maughan — who are due to appear in court again in the private prosecution on November 1 — wrote to KwaZulu-Natal judge president Thoba Poyo-Dlwati, asking her to intervene administratively and rule that they don’t have to appear on that date.

But Zuma is having nothing of it.

In a response, seen by the TimesLIVE premium, his attorney Mongezi Ntanga, says the judge president does not have the power to do this and Downer and Maughan were warned to appear in court on November 1 — and appear they must.

Ntanga says an appeal to the Constitutional Court was pending (which would be lodged before November 1) which would, in any case, suspend the SCA ruling.

He said it would be “improper” for criminal proceedings pending before a specific judge to be dealt with outside the courtroom and “all accused persons ought to be treated the same”.

The judge president has not communicated her decision to the parties as yet.

In the meantime, this Thursday, Zuma will again attempt to remove Downer as lead prosecutor in the criminal trial.

While papers in this matter were finalised before the SCA ruling, Zuma’s threatened appeal means he will persist with his argument that, because he is privately prosecuting Downer, “it cannot be seriously submitted that a person in the position of Mr Downer can ever qualify as a neutral prosecutor against the very person who is prosecuting him next door”.

In heads of argument filed with the court, Adv Dali Mpofu for Zuma, says it would be undesirable and inappropriate to turn a blind eye to the “factual existence” of the private prosecution.

But even if there was no private prosecution, the conduct of Downer in the alleged leak meant that Zuma reasonably apprehended that Downer was biased.

“There is a real risk of an unfair trial here,” Mpofu said.

In written arguments, Adv Wim Trengove, for the state, says Zuma’s complaints have been repeatedly and emphatically dismissed by the courts with findings that he had abused the court processes — and this meant his arguments now were fatal.

“These prior judgments do not leave Mr Zuma with any room for escape. His application is fatally deficient in fact and in law,” he said.

The matter will be heard by Pietermaritzburg high court judge Nkosinathi Chili — the same judge presiding over the private prosecution.