By Lehlohonolo Lehana.
The Supreme Court of Appeal (SCA) in Bloemfontein reserved judgement in an appeal by former President Jacob Zuma to overturn the high court ruling in Pietermaritzburg on his private prosecution.
In June 2023 Advocate Billy Downer and journalist Karyn Maughan won their application to set aside their private prosecution bid instituted by Zuma. Zuma was ordered to pay costs.
In an unprecedented special plea, Zuma insists the National Prosecuting Authority (NPA) does not have the right to lead evidence of his corruption against him, and demanded to be acquitted.
Zuma is not only seeking the removal of Downer as the lead prosecutor against him because of his alleged lack of impartiality and independence, he also wants the NPA to be completely blocked from pursuing its 16-year-old case against him.
However his defence lawyer Advocate Dali Mpofu argued that Zuma is only seeking Downer’s removal, when he has previously argued that no one from the NPA or anyone associated with it could prosecute him.
Mpofu said it is “impossible” for Downer and Maughan to have succeeded in obtaining an order that enforced the invalidation of Zuma’s private prosecution and it would be “impossible” for the SCA to sustain that enforcement.
Advocate Geoff Budlender SC on behalf of prosecutor Billy Downer, said Zuma’s application to challenge the enforcement of the private prosecution invalidation was defined by “abuse” that he had never seen before – and argues that this was because Zuma appeared to believe that the issue before this court was whether Downer should be allowed to continue to prosecute him.
This is not the case, he says – and stresses that all of the complaints that Zuma made against Downer have already been rejected by Judge Piet Koen, in Zuma’s criminal trial.
Budlender points out that Downer had disagreed with then-acting NPA head Mokotedi Mpshe’s decision to discontinue the case against Zuma on the basis of the so-called “Spy Tapes’ recordings.
That stance was ultimately vindicated by multiple court rulings.
The advocate added that Zuma’s torrent of abuse and insult against Downer was unfounded.
Budlender said it is not for Zuma to decide who should be able to prosecute him.
He said that Zuma is clearly using his private prosecution against Downer as a basis to force his removal.
Advocate Tembeka Ngcukaitobi who was representing Maughan has told the justices at the SCA that Zuma continues to manipulate the justice system.
He argued that the tactical litigation employed by Zuma in his criminal cases should not be entertained by the SCA.
Ngcukaitobi submitted that there are no prospects of success in the appeal and that the prosecution of Maughan by Zuma is abuse of the law.
Advocate Ben Winks also on behalf Maughan, argued that “the private prosecution of Maughan is an abuse of court process. It is a malicious and oppressive prosecution brought by a powerful former president against a journalist who has been reporting on his legal troubles in a manner that displeases him.”
Ngcukaitobi and Winks further contended that “the continuation of the private prosecution pending appeals is a direct violation of constitutional rights, not merely commercial or practical interests”.
Zuma and French arms company Thales face several charges including fraud, racketeering and money laundering linked to the multibillion-rand arms deal in 1999.
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