By Lehlohonolo Lehana.
The Pietermaritzburg High Court has dismissed former President Jacob Zuma’s application to have senior prosecutor Billy Downer recused from his corruption case.
Zuma accused Downer of bias and leaking sensitive information relating to him and his case, claiming that Downer had shared his private information, such as medical records, with others, including journalists.
Delivering judgment on Tuesday, KwaZulu-Natal High Court Judge Piet Koen said the former president had failed to show that State advocate Billy Downer lacked the “title” to prosecute him.
“The allegations of bias against Mr Downer were based largely on the fact that he has allegedly not been independent and objective. On a proper interpretation of [Section] 106(1)(h) of the CPA (criminal procedure act), that does not deprive Mr Downer of the title to prosecute.”
“I conclude in regard to the 14 specific grounds raised, commenting on each individually, that many were based on speculation or suspicion or are based on inadmissible hearsay evidence and not on fact,” said Judge Koen.
Koen continued in the alternative and adopting a wider interpretation of the words ‘title to prosecute’, I am still not persuaded that Mr Downer lacks the title to prosecute or should be removed as prosecutor.
“On the evidence before me, it has not been shown that Mr Zuma’s rights to a constitutionally fair trial have been impaired, or that there is a real possibility that his rights will be impaired.”
The judge dismissed the matter and directed that the corruption trial should proceed.
The former president had accused Downer of turning his criminal case into “a personal legacy project of his own”.
Zuma wanted Downer removed from the case, saying he did not have a “lawful title” to prosecute him.
He also said Downer lacked the independence and impartiality to conduct the case lawfully.
However, the National Prosecuting Authority (NPA) previously pointed out the courts had already conclusively found that an application for the removal of a prosecutor on the basis of bias or apprehension of bias could not be conflated with a challenge to the prosecutor’s “title” to prosecute – which was often raised when non-State advocates were briefed to pursue private prosecutions.
The former president faces 16 charges relating to 783 payments he allegedly received from his former financial advisor, Schabir Shaik, as well as a R500 000-a-year bribe that the State said Shaik facilitated for him from French arms company Thales.
Zuma’s trial date has been set for 11 April 2022.