Zuma’s Downer-Maughan private prosecution bid is a farce aimed at delaying Arms Deal trial, high court is told

21 Mar 2023

Ex-president Jacob Zuma’s private prosecution of State prosecutor Billy Downer is ‘an abuse of process because it is part of the strategy used by Mr Zuma since 2007’, the Pietermaritzburg High Court has been told.

The Pietermaritzburg High Court was told on Monday that the private prosecution by former president Jacob Zuma of veteran State Advocate Billy Downer and senior journalist Karyn Maughan was a farce built upon non-existent or flawed evidence, and that its sole purpose was to delay the Arms Deal fraud and corruption trial, in which Zuma is accused number one.

Advocate Steven Budlender SC, acting for Maughan, told the Full Bench that in Zuma’s heads of argument, there were “extraordinary facts cited” that could not be sourced in the record. He also said it was clear that Zuma had developed an “extraordinary animosity” towards Maughan because of her reporting on matters involving him, and that this had fuelled his desire to privately prosecute her, albeit as an “afterthought”.

Acting for Downer, advocate Geoff Budlender SC told the court that Zuma’s private prosecution of his client was initiated for an ulterior purpose — to ensure the sitting of the Arms Deal graft trial was not realised.

Downer and Maughan are being privately prosecuted by Zuma on the allegation that they “colluded” to leak and publish the contents of a “confidential” medical letter, in contravention of the NPA Act, that was to be used by his legal team for seeking postponements in the Arms Deal matter.

The Arms Deal trial is expected to finally start on 17 April, but Zuma’s legal team has indicated that it will bring a further application to have Downer removed, given that he is an accused in a private prosecution.

Advocate Geoff Budlender told the Full Bench that besides the pending application for Downer’s removal, most of Zuma’s attempts to have the senior prosecutor removed had failed.

The former president had raised a special plea with the Pietermaritzburg court before Judge Piet Koen — who in January recused himself from the trial — claiming Downer had no title to prosecute. Every court, including the Constitutional Court, dismissed the plea.

‘Initiated for ulterior purposes’

“Now Zuma wishes to proceed with the same case in this court. That simply cannot be. This case is weaker than the [special plea application heard] before Mr Koen,” said Geoff Budlender.

“This prosecution is an abuse of process because it is part of the strategy used by Mr Zuma since 2007. It was initiated for ulterior purposes and to delay the trial from ever happening.”

The Budlenders are seeking that the summons served on their clients last year be set aside and that the former president be interdicted from any further attempts to prosecute Downer and Maughan on similar charges.

Downer is the lead prosecutor in the Arms Deal case and was part of the original team that successfully secured the conviction of Zuma’s then financial adviser, Schabir Shaik, in 2005.

Zuma is accused of receiving 791 payments, totalling R4.1-million, between 1995 and 2004 from Shaik, and Shaik’s companies, to help French arms manufacturer Thales secure lucrative defence contracts from the government as part of South Africa’s armaments deal.

Shaik was released on medical parole in March 2009.

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Zuma is facing one count of racketeering, two counts of corruption, one count of money laundering and 12 counts of fraud. Thales (accused two) is facing one count of racketeering, two counts of corruption and one count of money laundering.

Zuma was first indicted on 30 June 2005.

The medical letter Zuma used to justify his private prosecution was, on the version of both Downer and Maughan, filed with the Pietermaritzburg High Court, where the matter is being heard, thereby making it a public document, and did not contain any confidential medical information.

Downer is being charged as an “accessory after the fact” in the private prosecution, with Zuma claiming that Downer’s legal colleague, advocate Andrew Breitenbach, sent the medical letter to Maughan on Downer’s instruction. Breitenbach, however, has said in an affidavit that he sent the letter to Maughan, without seeking Downer’s permission. Maughan published its contents after it was filed with the court.

“We say this case is important not only because it is part of a continuance to stop or delay a prosecution of Mr Zuma, but it is also important because this conduct, if upheld by the court, will be an invitation by other accused to do the same thing,” said Geoff Budlender.

“We will have case after case where well-resourced accused persons, who don’t want to face charges, will prosecute the prosecutors on private prosecutions on trumped-up charges. They will do so and run those cases through the court and they will stop the court from applying justice.”

The nolle prosequi certificate is a jurisdictional prerequisite, and if you do not have one, you cannot proceed [with a private prosecution].

Steven Budlender said the court may as well send Maughan “home” as the summons on which she was instructed to appear before the court was flawed.

He said Maughan was summonsed based on the first nolle prosequi certificate issued by the National Prosecuting Authority (NPA) for a matter in which Maughan was not a suspect.

Zuma had initially laid a criminal charge against Downer, but in June 2022 the NPA declined to prosecute and issued the certificate. It did not mention Maughan.

“The nolle prosequi certificate is a jurisdictional prerequisite, and if you do not have one, you cannot proceed [with a private prosecution],” said Steven Budlender.

He said Zuma had instead tried to rely on a second nolle prosequi certificate to prosecute Maughan, which was also ambiguous.

“The second nolle certificate cannot cure the absence of a nolle prosequi certificate because it was not in place at the time that the summons was issued. When you are dealing with a jurisdictional fact, which has to be met … you have to get it in place before you issue it.

“So, on that basis alone, what the second certificate does or does not say is utterly irrelevant, and the summons against Ms Maughan falls to be dismissed.”

Zuma’s ‘hostility’

Further, said Budlender, the court had to ask itself, given statements made by Zuma in his court papers, if his private prosecution of Maughan was brought out of “a legitimate, dispassionate thought that a crime has been committed” or because he had developed “hostility” towards her.

In his affidavit, Zuma said that in covering the Arms Deal matter, Maughan had adopted the State’s “misconceived” views that he was using delay tactics to escape his criminal trial, which included faking his medical certificate.

Said Zuma: “Ironically, now that the shoe is on the other foot, Miss Maughan is employing exactly the same strategy, [which] she has consistently labelled as Stalingrad. In my view, this is nothing but duplicity and disingenuity, laced with a touch of racist bigotry.”

Zuma had also described Maughan as “the propaganda machine of the media”, a “tool used by the NPA to perpetuate falsehoods”, “a hostile journalist who is incapable of balanced reporting” and an “anti-Zuma crusader”.

Budlender asked: “Is there a personally hostile attitude displayed by Mr Zuma against Miss Maughan? Unquestionably, there is.”

Zuma’s private prosecution of Maughan was thus not a genuine attempt to vindicate the rule of law by prosecuting a crime that had been committed, said Budlender. Instead, the former president’s summonsing of Maughan using baseless allegations was an attempt to discredit and silence her “and to prevent her from reporting on the progress of his criminal trial”.

Maughan was “lumped in” with Zuma’s private prosecution of Downer as an afterthought, said Budlender, to discredit her, in the hope that News24 would take her off reporting about the Arms Deal matter.

The charge against Maughan was “patently flawed” said Budlender, and clearly an abuse of process.

Several amici curiae (friends of the court) also made submissions on Monday.

A threat to media freedom

Advocate Kate Hofmeyr SC, for the Helen Suzman Foundation, said they too had brought an application to halt the private prosecution of Downer on the grounds that Zuma’s motive was driven by the “ulterior motive” of delaying the Arms Deal trial. Zuma, who was a criminal accused, had initiated the private prosecution against Downer, while his own prosecution was pending, said Hofmeyr.

Advocate Toni Palmer, acting for the SA National Editors’ Forum, the Campaign for Free Expression and Media Monitoring Africa Trust, said the private prosecution process was being used to intimidate Maughan and was a threat to media freedom.

Advocate Vuyani Ngalwana, representing Democracy in Action (DiA), and only making submissions on Maughan, said she was “secure in the comfort that she has the entire mainstream media machine” backing her. This had been demonstrated by the amici who made submissions before he did, said Ngalwana, who had also issued media statements in support of Maughan.

The fundamental question that the court needed to answer, said Ngalwana, was whether Maughan, in motion proceedings, was entitled to avoid answering a criminal charge in a criminal court “by reason of her only being a journalist”.

The matter continues on Wednesday, with Advocate Thabani Masuku SC set to argue for Zuma. DM

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‘Initiated for ulterior purposes’

Zuma’s ‘hostility’

A threat to media freedom