By Lehlohonolo Lehana.
Judge Nkosinathi Chili expanded on his reasons why he denied Jacob Zuma’s request to remove state prosecutor Billy Downer in his ongoing corruption case.
Zuma’s legal team requested these reasons ahead of their planned application for leave to appeal the judgment made in March.
Initially, the judge intended to provide his reasoning at the conclusion of the trial, but Zuma’s team argued for an earlier disclosure. Zuma, along with French arms company Thales, faces charges of fraud and corruption related to South Africa’s controversial arms deal from the 1990s.
The charges against Zuma relate to a period between 1995 and 2005, before he became president. During that time, he was an influential politician on the rise and later the deputy president of South Africa. He is accused of receiving bribes in return for giving the deal political protection and ensuring it went through despite questions over it.
The judge said he was satisfied that there was merit in the submission that the grounds advanced by Zuma to remove Downer were officially dealt with in previous litigation.
Chili said the high court, in a ruling by the initial trial judge, Piet Koen, held that none such happened. A full bench reached the same conclusion, and these findings were confirmed by the appellate.
“It is important to note that every attempt to overturn Koen’s judgment has been unsuccessful. Findings made in the removal and private prosecution judgments are binding on this court,” he stressed.
Therefore, Zuma’s further argument that it would make a mockery of the justice system if Downer were to appear as an accused one day, and the next appear in court to prosecute his accuser, stood to be dismissed.
Chili said had the charges against Downer stood, he would not have hesitated to grant an order for his removal.
“But that is not the position. As things stand there is no private prosecution. All attempts by Zuma to prosecute Downer have been unsuccessful.
“I might just add that as a debate of the hearing of argument in the present application, the supreme court of appeal had already made a factual finding that the attempt by Zuma to prosecute Downer amounted to an abuse of process.”
He quoted at some length from the SCA ruling.
“The facts demonstrate that a private prosecution of Downer is an abuse of the process of the court for multiple reasons. First, as the high court found, it was instituted as a further step in a sustained attempt by Zuma to obstruct and delay his criminal trial.
“This is an ulterior purpose and the institution of the private prosecution was accordingly unlawful. Second, it was instituted in order to have Mr Downer removed as the prosecutor in Mr Zuma’s trial. This too is an ulterior purpose which renders the private prosecution unlawful and, third, the contemplated private prosecution is patently a hopeless case. It is obviously unsustainable.”
Zuma had sought to bolster his application by reviving a complaint that Downer had impermissibly divulged details of the prosecution to investigative journalist Sam Sole in 2008. That too has been found to be meritless, Chili said.
The judge also quoted submission by advocate Geoff Budlender, for the NPA, that Zuma was attempting, through his multiple applications, to pick the prosecutor of his choice to conduct the trial stemming from alleged fraud, corruption and money-laundering related to South Africa’s 1990s arms acquisition.
“He proceeded to say that if such a process were allowed that would become a standard tool in the toolbox for well-resourced accused persons to abuse the process. He further expressed the view that our law does not tolerate such processes,” Chili said.
“There is merit in that argument.”
He noted that Downer had argued that the complexity of the case, and the financial prejudice his removal would mean for the state, were among the reasons he should be retained.
Zuma did not deal with these submissions in his answering affidavit, other than saying Downer was not indispensable, Chili noted.
Furthermore, Zuma had conceded that many of his complaints against Downer have been dealt with by the courts but said he was raising these again to demonstrate that the atmosphere surrounding the trial had become too toxic for him to prosecute the matter.
The court did not agree.
“Having considered all the grounds advanced by Zuma, both individually and cumulatively, I was unable to conclude that Zuma’s right to a fair trial will be violated if Downer will remain the prosecutor in the matter,” Chili said.
As a result, the state pleaded with Chili to set the case down for trial from April next year despite Zuma’s planned application for leave to appeal.
Downer asked Chili to set down a date for hearing the application for leave to appeal this year still, but the judge said he would only be available from January next year.
The prosecutor said he was reiterating his plea that the court reserve the weeks from 14 April to 20 June, and 21 July to 19 September for trial, whatever the outcome of the planned application.
“Those dates in April must remain and the trial must start, whatever the status of any appeal processes might be going forward, because no matter what your Lordship decides in January on the date which the court will insert.”
Downer said it was clear that if the application for leave to appeal were denied, Zuma would appeal to a higher court “in accordance with what we say is Stalingrad”.
“This cannot be allowed to continue,” he added.
“We will be ready for trial, the state witnesses will be briefed, the police will be available, the court will be available and my learned friends, certainly for accused number two [French arms maker Thales] have indicated that they will be available.”
Advocate Nqabayethu Buthelezi, for Zuma, countered that it would be unfair to the court to reserve dates when Chili’s ruling is being appealed and that the process needs to run its full course.
“The appeal avenues that exist in as far as petitioning the SCA and further, make it unfeasible that we would sit here in good mind and good conscience and accept that we are going to start the trial as of April next year. That is not possible.”
Zuma’s advocate argued that trial itself should be postponed indefinitely. However, Chili was having none of it and scheduled Zuma’s appeal hearing for 6 February.
Zuma was fired as deputy president in 2005 after his financial adviser, who is alleged to have been the fixer for the bribes, was convicted of corruption and sentenced to prison.
He was served with a preliminary indictment in 2005 but the charges were dropped and reinstated multiple times over the years.
Zuma made a dramatic political comeback to become president of South Africa in 2009. He resigned as leader of Africa’s most developed country in 2018 because of separate corruption allegations.
If Zuma is convicted of the charges in the arms deal trial, he faces a possible sentence of between 15 years and life in prison. The 82-year-old served part of a 15-month prison sentence for contempt of court in 2021 for refusing to testify at a corruption inquiry that was not related to his trial.
Zuma has since made yet another political return, this time as the leader of a new political party, and is involved in another court case over whether he’s eligible to run as a candidate in anational election this month The national election body says he is ineligible because of his criminal conviction for contempt.