Lead prosecutor advocate Billy Downer will be called as a witness by former president Jacob Zuma in his arms-deal related trial, Zuma’s advocate Dali Mpofu says.
Mpofu on Thursday argued in the Pietermaritzburg high court that presiding judge Nkosinathi Chili should grant leave to appeal to allow Zuma to challenge in the Supreme Court of Appeal (SCA) his ruling dismissing an application that Downer be removed from the case.
Mpofu said Zuma had a “reasonable apprehension of bias” — an issue not canvassed by Chili when he handed down his reasons for the dismissal of the application in September last year.
While Mpofu conceded the private prosecution against Downer and journalist Karyn Maughan, for the alleged leak of a medical report, “was done” (after damning court rulings), he said the issue of the leak to Maughan and previous “leaks” to journalist Sam Sole would be raised at the criminal trial.
“Who will the witnesses be? They will be Downer (state advocate), Andrew Breitenbach and Ms Maughan. They will be called by us to get to the bottom of the alleged leakages. And it might involve President (Cyril) Ramaphosa because he said (Downer) would be referred to the legal practice council and that never happened.”
The fact Downer would be “a witness in his own trial” means he should be removed as prosecutor and the SCA might well agree with this if it heard the appeal.
Mpofu said while the private prosecution was no longer active, “the grudge is not tied to the outcome”.
“In real life, it matters not what the outcome of the private prosecution is. The fact of the matter, which will stand forever, was that Mr Downer was being prosecuted by Mr Zuma. That fact can never change.”
While state advocate Andrew Breitenbach argued law precluded mid-trial appeals in criminal matters unless they were in the interests of justice or there were special circumstances, Mpofu said allowing an appeal was “clearly in the interest of justice”.
“It’s common sense, you cannot have a situation where the prosecutor or the judge must recuse themselves, but then you say run the trial and then at the end we will determine if they should have recused themselves. That is nonsense. You will have to run a long trial which might result in a nullity.
“It’s a waste of everyone’s time and money.”
In response to Mpofu’s submissions Downer would be called as a witness in the criminal trial, Breitenbach said any evidence about the alleged leak of Zuma’s medical information to Maughan was irrelevant to the case and would be inadmissible.
But later, in reply, Mpofu said: “We are going to call Mr Downer as a witness. It's not a threat, it's a fact. So you might as well remove him (from the trial) now.”
Earlier Breitenbach, in opposing the application for leave to appeal, said Chili should take note of Zuma’s “Stalingrad litigation strategy”.
He said Zuma had flogged to death the same points in his legal bids to stop the prosecution against him and to oust Downer. He said the points raised by Zuma were like “candyfloss” and had no substance.
He said while Zuma’s legal team had objected to the term, it had first been raised in 2007 by Zuma’s former advocate (now deceased) Kemp J Kemp.
He said courts, including the SCA, had used the term “Stalingrad” in dismissing his appeals as being an abuse of process.
This justified the epitaph, he said.
But Mpofu was having none of it.
“The time has come to put this to bed once and for all,” he said.
He said it was “just insulting” to someone who was using the constitution to uphold his rights.
“The battles in Stalingrad were not about delays, but to fight on every front available. To turn it into a swear word is a smear on the constitution and desecrates the memory of advocate Kemp,” he said.
“We are going to use every protection in the law that is legally available. You can call us what you want.”
Mpofu indicated during argument that while he still had to take instructions, Zuma would possibly support a bid by his co-accused, French arms company Thales, for a permanent stay of prosecution, which it filed earlier on Thursday.
Thales said the charges relate to events which took place almost three decades ago. The French company pleaded not guilty and filed a plea of explanation in May 2021.
Since then the trial had been postponed 16 times “due to no fault of the second accused,” and two crucial witnesses, fundamental to their defence, had subsequently died.
Thales' attorney Cameron Dunstan-Smith said in an affidavit it was impossible for Thales to receive a fair trial given that the two directors, Alain Thetard and Pierre Moynot, who were allegedly involved in matters relating to the charges, have died.
“The importance of them in the criminal trial cannot be overstated. They are the only individuals who are able to testify in relation to the charges ... and their deaths have resulted in (Thales) being placed in a position where it cannot effectively put forward its defence and adduce and challenge evidence,” he said.
Mpofu submitted in reply if this was the case, the case could not proceed against them.
“We know this case revolves around the encrypted fax. If the owners of the encrypted fax are no longer there, that is the end of the case.”
Breitenbach said the state was still deciding on its position and the parties would arrange dates for the further filing of papers.
Judge Chili reserved judgment in the leave to appeal application.
Zuma and Thales are facing charges of corruption, racketeering and fraud. Thales is accused of paying bribes to Zuma through his former financial adviser Schabir Shaik.
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