By Lehlohonolo Lehana.
The Pietermaritzburg high court postponed a pre-trial hearing in Jacob Zuma’s arms deal case to grant his request for further written reasons for the dismissal of his most recent bid to have advocate Billy Downer removed as the state prosecutor in the matter.
Zuma is still fighting for Downer’s removal from his corruption case.
In May 2021, Zuma raised a special plea challenging Downer’s title to prosecute, which was dismissed.
He tried to appeal that ruling all the way to the Constitutional Court but with no luck.
He then brought another application for Downer’s removal, based on largely the same grounds of what he claims is bias, which was heard in October last year and which Judge Nkosinathi Chili once again dismissed in March this year.
Zuma’s counsel, advocate Dali Mpofu, did indicate at the time, though, that they already had instructions to lodge an application for leave to appeal. And on Thursday in court, it was confirmed that this had now been done.
Chili didn’t provide reasons for his order in March, saying he would include them in his final judgment on the main matter, and Zuma’s now asking for them for the purposes of moving his application.
In his March ruling, Chili said he was not persuaded by Zuma’s argument that allowing Downer to lead the prosecution would violate his fair trial rights.
“Having regard to submissions made by counsel, the relevant case law and, most importantly, the four pillars relied upon by Zuma, I am not persuaded that Zuma succeeded in establishing that the retention of Downer as the prosecutor in this matter could prejudice his right to a fair trial enshrined in section 35(3) of the Constitution.”
Chili said he was relying on some of the reasoning employed by former trial judge Piet Koen, who dismissed Zuma’s earlier attempt to disqualify Downer through a special plea entered in 2021 in terms of section 106 (1)(h) of the Criminal Procedure Act (CPA), but would incorporate his full reasons in the court’s judgment at the close of the trial.
In his ruling today, Chili said he is of the view that “exceptional circumstances” exist that justify him providing reasons for his Downer decision. He will provide his reasons in two weeks’ time – which will be on the 11 of September.
Chili’s decision was a setback for the state which had asked the court to dismiss the request and set a trial date for the corruption case that has been limping through the courts for nearly two decades.
It followed a morning of to and fro between the state prosecutor Downer and Mpofu as to the purpose of the hearing.
Downer was plain that the state was seeking a trial date and moved that the matter be heard in the second and third court term of next year.
The allegations at the heart of the case centre on a dodgy multi-billion rand deal government struck with French arms trader, Thales, in the 1990s.
Zuma and Thales were first charged in 2005 but the case was later struck from the roll after a series of delays. In 2007, it was reinstated but then in 2009, the National Prosecuting Authority (NPA) withdrew the charges.
In 2017, however, the Supreme Court of Appeal (SCA) overturned that decision and in 2018, the case was again reinstated.
The trial officially got underway in May 2021, when the charges were put to the accused and they pleaded not guilty to fraud, corruption, money-laundering and racketeering charges, but the myriad interim applications means no evidence has been led.