By Lehlohonolo Lehana.
Former President Jacob Zuma returned to the Pietermaritzburg High Court on Thursday to appeal the dismissal of his latest attempt to force his arms deal prosecutor Billy Downer’s removal from his corruption case.
Zuma wants Downer to be removed from the prosecution over alleged bias, saying his right to a fair trial would be infringed if the prosecutor remained.
The former president also tried but failed to privately prosecute Downer and journalist Karyn Maughan for alleged breaches of the National Prosecuting (NPA) Act. This is in connection with the leaking of his confidential medical information from one of the former president’s military doctors in August 2021
Zuma filed a series of appeals in a two-decade-long cycle of challenges crusade to privately prosecute Downer and Maughan.
However, the cases were invalidated as an “abuse of process” by multiple courts.
During Thursday’s court proceedings, Zuma’s counsel, Thabani Masuku, tried to counter the multiple court findings that Zuma engaged in Stalingrad legal tactics to get Downer removed.
Masuku said it was a “blatant lie” that Zuma was responsible for the 20-year delay in his trial and accused Downer of not “presenting a fair picture of what went wrong in this case”.
“What takes the cake for us, is that the 20-year-delay Mr Downer says Zuma is involved in it, and that’s a blatant lie. If you look at the facts dispassionately, he was involved in 20 years of avoiding his prosecution.”
Masuku argued that Downer does not present a “fair picture of what has gone wrong with this particular case”.
“He [Downer] is passionate about presenting Zuma as engaging in Stalingrad tactics in the eyes of the courts, which have in a series of judgements condemned people who engage in Stalingrad tactics. That can’t be right,” he said.
Earlier, Zuma’s advocate, Dali Mpofu, argued that – if the former president’s efforts to privately prosecute advocate Downer were malicious – “this grudge” strengthened the case for the removal of his corruption trial prosecutor.
“Remember it was said that that prosecution was malicious and what have you. Well, we say that is a point in our favour because imagine if indeed the prosecution was malicious, then the more reason why Downer should be aggrieved and want to get him [Zuma] because he maliciously prosecuted him.”
The NPA;s counsel, Advocate Andrew Breitenbach argued that judge Nkosinathi Chili should not only dismiss Zuma’s latest appeal application, but should confirm that his trial should continue – despite any appeals that he may launch.
“This case is obviously distinguishable on the fact. None of Downer’s relatives are potential state witnesses. He has, I respectfully submit, conducted the prosecution thus far in a restrained and professional manner, and he has done so while resisting on behalf of the state’s unjustified attempts to remove him.
“And resisting on his own behalf, he even had a private prosecution, which has been held to constitute an abusive process. Listening to the submissions this morning, one can only imagine the discomfort a career prosecutor such as Downer feels when having to face cases of this kind,” Breitenbach argued.
Meanwhile French arms company Thales has lodged an application for full acquittal in the arms deal case in which it faces corruption and racketeering charges.
The application, filed on Wednesday, argues that excessive delays in the proceedings have compromised its right to a fair trial. Thales contends that the prolonged legal battle has eroded its ability to mount a proper defence, particularly following the deaths of two key witnesses.
It seeks a court order that would prohibit the NPA from proceeding with the charges, effectively resulting in an acquittal on all counts.
Thales’ attorney, Cameron Dunstan-Smith, said since pleading not guilty to the charges in May 2021, the company has experienced repeated postponements, with the case being delayed on 16 separate occasions through no fault of its own.
“More than half a decade after that judgment and numerous costly and unreasonable delays to the criminal trial, the severe prejudice foreshadowed in the permanent stay application has now materialised, rendering it impossible for Thales to receive a fair trial,” Dunstan-Smith said.
In January 2021, the Pietermaritzburg high court dismissed Thales’ separate application to set aside the charges, a decision that bolstered the state’s case against the company and Zuma.
The NPA has attributed the repeated postponements to the numerous legal challenges raised by the defence teams.
The NPA has also accused Zuma of employing what has been described as a “Stalingrad” strategy — a series of legal manoeuvres designed to delay the trial and weaken the prosecution’s case.
The deceased witnesses were Thales director Pierre Moynot, who agreed with the NPA that company boss Alain Thetard — also now dead — would produce evidence on the affidavit.
The legal team argues that the resulting loss of evidence constitutes an “irremediable infringement” of Thales’ constitutional right to a fair trial, as enshrined in section 35(3)(i) of the Constitution.
This section guarantees every accused the opportunity to present and challenge evidence in a court of law. The company’s application argues that the prolonged delay, coupled with the untimely deaths of its witnesses, has rendered it impossible to secure a trial that meets this constitutional benchmark.
“The importance of Thetard and Moynot in the criminal trial cannot be overstated. They are the only individuals who can testify on behalf of Thales in relation to the charges against it and to assist Thales in challenging any evidence led by the state against it,” Thales said.
The charges against the company, alongside those against Zuma date back to a controversial multibillion-rand arms deal finalised in the late 1990s during Zuma’s tenure as vice-president.
Initially charged in 2005, the case was removed from the roll before being reinstated in 2007. In 2009, the NPA withdrew the charges, but the supreme court of appeal later overturned that decision, and the case was reinstated in 2018.
Judgment was reserved.