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

Judge Nkosinathi Chili during court proceedings to deliver judgment in the Zuma vs Downer Case at Pietermaritzburg High Court on 20 March 2024. (Photo: Gallo Images / Darren Stewart)

By Dianne Hawker

28 Aug 2024

Former president Jacob Zuma returns to court on Thursday and his legal team intends to revive an application to have prosecutor Billy Downer removed from his Arms Deal corruption case. Judge Nkosinathi Chili previously denied the application, but Zuma wants permission to appeal, a process likely to again delay the case.

If at first you don’t succeed, try, try and try again. This appears to be the approach adopted by former president Jacob Zuma as he makes another attempt to have the prosecutor, advocate Billy Downer, removed from his criminal trial.

Zuma is due back in the Pietermaritzburg High Court on Thursday, 29 August for what is meant to be a pretrial hearing in the decadeslong Arms Deal case. He is accused, alongside arms manufacturer Thales, of corruption for allegedly accepting an R500,000 bribe relating to a 1999 arms purchase by the government.

This is one of two ongoing matters in which Zuma is battling Downer. The second is a Constitutional Court application to have Downer prosecuted for allegedly leaking Zuma’s medical records.

Zuma has tried through various means to have Downer removed. First, he challenged his title to prosecute, using section 106 of the Criminal Procedure Act.

Then he went for a more personal attack, choosing to privately prosecute Downer and News24 journalist Karyn Maughan, alleging Downer leaked medical records to Maughan. Most recently, he has challenged Downer's impartiality, saying the ongoing litigation that he (Zuma) started had created bias.

In the matter before the Constitutional Court, Zuma wants to appeal the interdict against his private prosecution of Downer and Maughan. In his application before court on Thursday, he’s targeting only Downer.

Pretrial hearings are usually used to confirm the readiness of all parties ahead of the trial, which in this case is expected to begin in April 2025. However, that hearing is likely to be delayed as Zuma’s legal team revives his bid for Downer’s ouster.

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

The case continues while Zuma’s political star continues to rise as the leader of the uMkhonto Wesizwe (MK) party. The party was founded late last year and after six months garnered close to 15% of the national vote in the 29 May general election.

‘The learned judge erred’

zuma downer chili Judge Nkosinathi Chili during court proceedings to deliver judgment in the Zuma vs Downer Case at Pietermaritzburg High Court on 20 March 2024. (Photo: Gallo Images / Darren Stewart)

In March 2024, Zuma’s lawyers made an application to have Downer removed on constitutional grounds. That application was dismissed by high court Judge Nkosinathi Chili.

At the time, Chili said he was “not persuaded that Mr Zuma succeeded in establishing that the retention of Mr Downer as the prosecutor in this matter could prejudice his right to a fair trial as enshrined in section 35, (3) of the Constitution”.

Chili did not provide reasons for his decision, saying at the time that he would give reasons at the conclusion of the trial.

Zuma’s legal team has now submitted a notice of application for leave to appeal, saying he’d like to appeal to the Supreme Court of Appeal (SCA) or a Full Bench of three high court judges. This application would need to be decided before the court proceeds with the trial, meaning another inevitable delay in the start and finalisation of the case.

In the application document, Zuma’s team argues that Chili made a mistake when failing to consider “evidence of Mr Downer no longer being ‘personally detached’ and dispassionate about the trial itself”.

Zuma argues that Downer’s conduct has fallen short of the expected standards of fair prosecution. Interestingly, Zuma adds that Downer is conflicted because Zuma himself has chosen to privately prosecute him for allegedly leaking Zuma’s medical records to Maughan.

“The learned judge erred in failing to consider how the existence of the private prosecution (and the harsh sentence attaching thereto) against Mr Downer in his personal capacity renders Mr Downer conflicted as prosecutor, which conflict is incapable of being resolved.”

Zuma says Downer is “incapable of being considered neutral in his attitude toward the accused”.

Zuma alleges his right to a fair trial, enshrined in section 35 of the Constitution, will be violated if Downer remains as lead prosecutor in the case.

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

zuma court downer

NPA opposition

The National Prosecuting Authority (NPA) has submitted a notice of intention to oppose this latest application, arguing that it has no reasonable prospects of success. In court documents, the NPA points out that Zuma’s appeal is ill-timed.

“In terms of section 316 (1) a of the CPA [Criminal Procedure Act], an accused may not appeal against the dismissal of an interlocutory application before conviction. Mr Zuma’s applications for leave to appeal is thus not competent,” says the NPA.

The prosecution has also questioned Zuma’s motives for bringing the application.

“The appeal sought by Mr Zuma will not lead to a just and prompt resolution of real issues between the State and Mr Zuma. This court and the SCA have already traversed and determined the issues raised by Mr Zuma regarding Mr Downer’s independence and impartiality to conduct this prosecution in terms of the prescripts of the Constitution and the National Prosecuting Authority’s prosecution policy.”

Read more: Jacob Zuma appeal against journalist Karyn Maughan and advocate Billy Downer dismissed with costs by Supreme Court of Appeal

The NPA argues that the trial should be allowed to continue so that Zuma’s allegations of bias can be placed before the court in that forum.

“The interests of justice and the seriousness of the 18 charges against Mr Zuma require that any alleged infringement of Mr Zuma’s fair trial rights be determined when evidence in the criminal trial has been heard. At that stage the court will be able to assess all the evidence, the question whether there has been any unfairness in the trial and if so, the materiality of such unfairness,” the NPA argues.

‘Legal semantics’

Legal analyst and attorney Mpumelelo Zikalala agrees with the NPA’s perspective, saying Zuma was using “legal semantics” to delay the start of his trial.

“What Mr Zuma is trying to do is to say, ‘I do not want you to even lift the lid of what is inside this box that has evidence against me. I simply want you to look that he [Downer] is a person who is carrying the box because his hands are dirty.’ That is something that can’t happen within our legal system,” he said.

Zikalala explained further that in criminal cases, an accused could raise issues about the conduct of the prosecution or police and the court would have to decide whether the conduct had a “material impact” on the outcome of the case.

These kinds of challenges are often seen when accused persons oppose the admission of evidence that was obtained illegally or through forced confessions.

“It may be that Downer acted in an unprofessional manner, but is it enough to render the case null and void? The judge in this case is not assessing the conduct of Downer — the case is about Mr Zuma,” Zikalala said.

ConCourt case

Zuma approached the Constitutional Court in April to revive his private prosecution case against Downer and Maughan.

He launched the case in September 2022, accusing Downer of illegally leaking his medical records to Maughan. Downer has denied leaking the documents and the private prosecution has been interdicted.

The medical information was contained in a letter from a military doctor, submitted to court in August 2021 in support of an application for a postponement in Zuma’s Arms Deal trial.

Zuma hopes the Constitutional Court will overturn a decision by the SCA so the prosecution can continue. DM

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South Africa

‘The learned judge erred’

NPA opposition

‘Legal semantics’

ConCourt case