Billy Downer opposes bid by Jacob Zuma to remove him as prosecutor

The special plea by former president Jacob Zuma wanting the removal of Billy Downer as prosecutor in his corruption trial should be rejected.

This is the submission of the state in its response to the special plea by Zuma in his trial which began last month.

Zuma's special plea is based on section 106(1)(h) of the Criminal Procedure Act (CPA), which states that when an accused pleads to a charge, he may plead that the prosecutor has no title to prosecute.

But in its responding submission, the state says that the request for Downer's removal is not based on this at all.

Zuma pleaded not guilty to racketeering, corruption, fraud and money laundering before judge Piet Koen in the Pietermaritzburg high court on May 26. He is accused of receiving an annual bribe of R500,000 from French arms dealer Thales, for protection from an investigation into the controversial arms deal.

The state is opposing Zuma's special plea for Downer's removal, and has asked that it be dismissed. Alternatively, in the event the high court finds in favour of Zuma on the special plea, the state said Zuma's call for an acquittal should be rejected.

In his special plea, Zuma contended that Downer should be removed because Zuma had a reasonable apprehension that Downer lacks the independence and impartiality necessary for a lawful prosecution.

In his answering affidavit to the special plea, dated June 1, Downer said Zuma did not call into question his admission as an advocate, nor his designation by the director of public prosecutions, to conduct this prosecution on behalf of the state.

"Instead the first accused [Zuma] relies on contraventions of his rights and especially his right to a fair trial which he alleges will ensue if I conduct the prosecution for the state; and, further, on his allegation that I will be an essential witness on the issue of whether his right to a fair trial has been violated," Downer said.

He said that if an accused believed the prosecutor assigned to his case would not exercise their duties impartially and without fear, favour or prejudice, the accused may bring an application to the court for an order that the prosecutor be removed and replaced.

"What such an accused may not do, however, is seek such removal through the device of a special plea in terms of section 106(1)(h) of the CPA."

Downer said the special plea was not based on his lack of title to prosecute as envisaged in section 106 (1)(h). "For this reason alone, I submit, the special plea should be dismissed and the first accused is not entitled to demand an acquittal."

He said Zuma would not be entitled to demand an acquittal in the event that his special plea succeeded because the state has designated two other prosecutors to prosecute him and Thales.

Downer said Zuma was not permitted to seek against the state the same relief as he did on the application — for a permanent stay of prosecution — which the full court in Pietermaritzburg dismissed on October 11 2019.

"His claim for that relief has been finally adjudicated by a court of competent jurisdiction."

In his special plea, Zuma also mentioned that one of his fears was that Downer had communicated with the journalist Sam Sole on his prosecution and he felt Downer could not be trusted.

Downer said most of the conversations he had with Sole were entirely unrelated to the investigation or prosecution of Zuma.

"I deny giving Mr Sole confidential information," he said.

Downer also denied that "foreign intelligence" was involved in Zuma's prosecution, let alone that he knew about it.

Zuma had alleged that former Scorpions boss Leonard McCarthy was an operative for a foreign agency and said he feared Downer had covered up McCarthy's conduct for political and intelligence reasons.

Downer also denied that the litigation demonstrated that the state had approached Zuma's prosecution in a manner which violated his rights.

The case against Zuma and Thales will resume on July 19.

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