Downer responds to Zuma’s bid to remove him: Grievances ‘not new and already dealt with in court’

Downer also contends that even if some of the accusations were true, they would have no material impact on his or any other prosecutor’s ability to prosecute the former president.

The National Prosecuting Authority (NPA) filed its papers on Wednesday afternoon at the Pietermaritzburg High Court.

One of the consequences of Zuma’s attempt to have the lead prosecutor removed is that both parties have been forced to relive the experiences that brought them to this juncture.

For Zuma it has been an opportunity, and possibly his last such attempt, to push the narrative that his prosecution is part of a foreign-led (read CIA), politically driven conspiracy where everything is connected, no matter how tenuous the link.

The NPA has had to answer Zuma’s claims by traversing through the protracted history of the matter, dating back to at least 2003, in an attempt to dismiss Zuma’s allegations.

On 26 May,  Zuma pleaded not guilty to charges of corruption, fraud, tax evasion and racketeering in the Pietermaritzburg High Court, and entered a “special plea” in terms of Section 106(1)(h) of the Criminal Procedure Act, which allows for an accused to have a prosecutor removed from a case. Zuma included in his plea that should Downer be removed, he would be entitled to an acquittal.

Zuma is accused of receiving 791 payments worth R4.1-million between 1995 and 2004 from his former financial adviser and convicted fraudster Schabir Shaik and Shaik’s companies, to protect Thales South Africa (Pty) Ltd, Zuma’s co-accused, from investigations relating to the 1999 multibillion-rand Arms Deal.

Central to the former president’s special plea is the claim that his trial will be based on political interference, foreign intelligence agency meddling and the NPA’s conspiring with the media.

He has also contended that Downer played a central role in, or had knowledge of, all of the alleged collusion. He claims that Downer is an “essential witness” in the allegations of political interference, which should exclude him from the matter.

Zuma’s legal team informed Judge Piet Koen about the special plea on 17 May when the trial was expected to start. The team filed the special plea application along with an affidavit deposed by Zuma on 19 May.

Included in Downer’s rebuttal is that Zuma already had the opportunity to remove him from the case, but chose not to.

Downer’s affidavit totals 157 pages and is accompanied by 2,550 pages of annexures consisting of previous court judgments and memos.

It also contains the original 7 August 2003 “Factual Report” drafted on the instruction of the National Director of Public Prosecutions at the time, alleging the corruption and related crimes concerning Shaik, Zuma and Thales South Africa were used by Downer in an attempt to convince the court that Zuma’s attempt to have him removed had no merit.

In his affidavit, Downer says that Zuma’s special plea does not question his role as an advocate or as a senior member of the NPA, but instead “relies on contraventions of his rights and especially his right to a fair trial”.

Downer says he recognises that any accused who believed that a prosecutor assigned to a case would not carry out his or her duties in good faith, and was an essential witness to the case, may bring an application to the court for an order to have the prosecutor removed — but that this was not relevant to Zuma’s trial.

The veteran prosecutor further said that even if the court upholds Zuma’s plea, the former president will not be entitled to an acquittal. This is because there are two other prosecutors assigned to the case and the National Director of Public Prosecutions, Shamila Batohi, could assign another prosecutor to the matter.

Downer said Zuma had the opportunity to argue for his removal in previous litigation, referring to the permanent stay of prosecution applications made by both accused before the same court in 2019. The court ruled in favour of the State in those attempts.

“In its judgment, the full court did not deal with the first accused’s allegations of misconduct [against me], including… that I leaked confidential information… to a journalist, Sam Sole of the Mail & Guardian newspaper. This was because, at the hearing, the first accused’s counsel expressly abandoned the attacks on… me.”

Downer said Zuma unsuccessfully appealed against this judgment and withdrew his application to have it heard at the Constitutional Court in April 2020, thereby making the high court judgment final.

“The first accused is not permitted to use the device of the plea in terms of Section 106(1)h) and an acquittal in terms of section 106(4) [of the Criminal Procedure Act] to seek against the same party (the State), essentially the same relief as he did in the application for the permanent stay of prosecution which the full court dismissed on 11 October 2019.”

Downer said any claims that he “lacks independence and impartiality”, as raised by Zuma in his special plea, had already been decided in that judgment.

He also denied that he was “an essential witness” in the case.

This claim revolves around Zuma’s accusation that Downer filed an affidavit in support of the Democratic Alliance application challenging the 2009 decision to drop the 783 graft charges (since revised to 791) he is facing because of political interference.

The decision was taken by then acting prosecutions boss Mokotedi Mpshe on the advice of prosecutor Willie Hofmeyr. They based the decision on a series of intercepted telephone recordings known as the “Spy Tapes”, handed to the NPA by Zuma’s legal team.

The tapes consist of conversations in 2007 between former NDPP head Bulelani Ngcuka and Scorpions boss Leonard McCarthy. These, Mpshe claimed, pointed to a political conspiracy against Zuma.

(It must be noted that the Supreme Court of Appeal in 2017 upheld a high court decision that Mpshe’s decision to drop the charges based on the Spy Tapes was “irrational”.)

In his founding affidavit, Zuma argued that Downer was “acutely aware” at the time of the DA’s application that the official opposition was “hostile towards me” and wanted his prosecution “at all costs”.

But Downer clarified that he never submitted his affidavit in support of the DA. It was written at the request of Hofmeyr and was filed by the State.

“I made this affidavit at the request of Mr Hofmeyr, after I had refused to make an affidavit simply confirming the contents of his affidavit insofar as they related to me”.

Downer’s affidavit disagreed with the decision of Mpshe, Hofmeyr and the senior leadership of the NPA who sought to defend Mpshe’s decision.

Downer said his affidavit did not create a conflict of interest, as alleged by Zuma.

Downer has led the case against Zuma since 2003, and maintains his reasons for wanting to prosecute Zuma rest on three key points:

• Based on the evidence against Zuma, there is a reasonable prospect that the prosecution will be successful;


• The seriousness of the offences involving corruption and (at the time) the second most senior member of the national executive; and


• That the evidence of political interference on which Zuma relies is either unsubstantiated conjecture or has not infringed his right to a fair trial.

Downer said the first he heard of the so-called political interference conversations between Ngcuka and McCarthy was in February 2009 when Zuma’s legal team made representations to the NPA concerning the recordings, whose origins have never been fully disclosed as there was no legal court order permitting the recordings.

Downer admits in his affidavit that there are media leaks from within the NPA, but said these were not part of a concerted NPA strategy in Zuma’s prosecution.

Instead, he said, while Zuma was deputy president, the NPA went to “extraordinary measures to keep the fact that he was being investigated” out of the media.

He said Zuma may have suffered reputational harm mainly due to his association with Shaik, but that this did not prevent him from being elected state president in 2009, where he remained for just under nine years.

Downer said that Zuma was correct to state that had he been charged alongside Shaik he would have either been convicted or found not guilty years ago; however, Zuma and Thales had instead “implemented a dogged, Stalingrad defence strategy involving successive bouts of pre-trial litigation”.

Zuma is expected to reply to Downer’s affidavit by 9 June. The former president and the NPA are expected to then submit their heads of arguments on 5 July and 12 July respectively, in time for the hearing on 19 July. DM