Delay game – Judge to provide reasons for denying Zuma’s push for Downer’s removal

KwaZulu-Natal Division of the High Court Judge Nkosinathi Chili has agreed to provide reasons for his decision denying former president Jacob Zuma’s request to have Advocate Billy Downer removed as prosecutor in his arms deal corruption case. 

His ruling came after Zuma’s lawyer, advocate Dali Mpofu, made an impassioned plea for the court not to finalise the trial dates until Zuma had exhausted all his appeals. The reasons will be given on 11 September. 

In March, Zuma had applied for Downer to be removed from the prosecution over alleged bias, saying his fair trial rights would be infringed if the prosecutor remained. This application was separate from a previous attempt to have Downer removed, which relied on section 106 of the Criminal Procedure Act. Judge Chili dismissed the request at the time and said he would only provide reasons at the end of the trial. 

In March he set the dates for the trial to begin in April 2025.

Read more: Zuma returns to court in an umpteenth attempt to have Downer removed as prosecutor

On Thursday, Mpofu argued that Zuma needed the reasons in order to appeal against Judge Chili’s decision, and that the trial date could not go ahead until this issue was resolved. 

“The right to appeal goes symbiotically with the right to reasons. Because you can’t just appeal. Appeal what?” Mpofu asked.

He added that his client’s right to appeal was enshrined in the Constitution and needed to be protected.

Mpofu called on Judge Chili to provide full reasons for why he denied Zuma’s application for Downer’s removal, after which his team would argue for leave to appeal against the decision and only then could a trial date be set. He added that if the National Prosecuting Authority (NPA) were to drop Downer, the case could easily proceed. 

“The issue of the recusal of Mr Downer is obviously intertwined with the commencement of the trial… They can’t have their cake and eat it. They can’t want to commence the trial and retain Mr Downer,” Mpofu said. 

Read more: Zuma’s private prosecution of Downer, Maughan struck off the roll – but lawyers, supporters cry victory

Downer, who has been the subject of Zuma’s ire since the trial was meant to start in 2021, argued that the court should avoid any further delay. 

“We ask that the court issue an order for the postponement of this matter to trial. We ask that the matter be postponed for trial to the second term of 2025, being 14 April 2025 to 20 June 2025 and to the third term, 21 July to 19 September. And any further dates that the honourable judge presiding might determine. So we want the trial to start,” Downer told the court. He added that the second accused, Thales, had agreed to this proposal. 

Read more: Chaos Is The Point: Zuma’s empty and violent rhetoric aims to hurt South Africa’s democracy

In addition to Zuma’s attempt to remove Downer as prosecutor, the former president has also targeted Downer personally by trying to privately prosecute him for allegedly leaking medical records to journalist Karyn Maughan. Downer has denied being the source of the leak, but Zuma has continued trying to prosecute him. 

In agreeing to grant the reasons, Judge Chili noted that “exceptional circumstances exist”  that he grant Mpofu’s request. He did not elaborate on what the exceptional circumstances were before telling the parties to return to court in September.

MK Party supporters listen to Jacob Zuma outside the high court in Pietermaritzburg,  29 August 2024. (Photo: Mandla Langa)

Today we in Pietermaritzburg to support President Zuma! Hands Off! pic.twitter.com/6lzCxp4Nv5

— Floyd Shivambu (@FloydShivambu) August 29, 2024