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Supreme Court of Appeal yet to decide on Jacob Zuma’s 'reconsideration' application in bid to oust prosecutor

Corruption case postponed to August

Former president Jacob Zuma. File photo.
Former president Jacob Zuma. File photo.
Image: Sandile Ndlovu

Former president Jacob Zuma’s “reconsideration” application in his continued bid to oust lead prosecutor advocate Billy Downer from prosecuting him, was only this week “on its way” to the desk of Supreme Court of Appeal (SCA) president Mandisa Maya.

This in spite of Zuma’s application being lodged with the court on April 8 — and the National Prosecuting Authority (NPA) choosing not to file any papers to “speed along the process”.

The delay in judge Maya considering the application — in which Zuma seeks to get the court to overturn a ruling by Pietermaritzburg High Court judge Piet Koen, dismissing his “special plea” to remove Downer from the case — now means the trial, if it even starts this year, will undoubtedly run into late next year.

Tuesday was set as a “holding date” to give time for the adjudication of the reconsideration application. Zuma and the representative of his co-accused, French arms company Thales, were previously excused from attending.

Koen expressed surprise that the reconsideration application had not yet been dealt with by the SCA. “Normally these matters are dealt with fairly quickly,” he said.

Downer confirmed that he had checked on Monday and the registrar had told him that “it was on its way to the president [Maya]”. He said he was not in a position to interrogate why it had taken so long.

“We will just have to wait,” Koen said, noting it was likely that if the SCA ruled against Zuma, he may make an application to the Constitutional Court. 

Koen, who had previously set May 31 as the date when the trial should resume, said a new holding date would now have to be set — August 1 — with the trial potentially proceeding on August 15. He asked the legal teams to send him dates regarding their availability for the second term of 2023.

After pleading not guilty to the charges, Zuma raised the special plea in terms of the Criminal Procedure Act saying that Downer, who he accuses of bias and misconduct, had no “title” to prosecute him.

Koen ruled that “title to prosecute”, in decided law, had nothing to do with bias or misconduct but was rather about “legal standing” or authority to prosecute, which Downer had.

Zuma’s many complaints about Downer could be raised during the trial, Koen said.

He later refused to grant leave to appeal against his ruling.

We are dismayed with the length of postponements and the effect on the administration of justice
Advocate Billy Downer

Zuma then approached the SCA, asking for leave to appeal, but two judges, without hearing argument, dismissed this, saying the application had no prospects of success. It is this decision that Zuma now wants Maya to “reconsider”.

Koen, in agreeing to the postponement of the trial in April, said in terms of law, he had no discretion but to adjourn the matter pending the outcome of that application. But he said he would keep “firm judicial management'' over the case.

On Tuesday, he said the fact that the application was now on the desk of Maya, he anticipated “some sort of decision will be made pretty shortly”.

Downer said: “We are dismayed with the length of postponements and the effect on the administration of justice”.

He indicated that the SCA ruling, and any potential Constitutional Court ruling, might give clarity on whether Koen was correct in adjourning the trial pending the outcome of the appeals.

Koen said he was also concerned about the delays, more particularly in the interests of Thales which had been ready to proceed from day one.

“In light of my judgment on the special plea, I don’t believe there is any substance in these [appeal processes],” he said. But whether I believe that or not, the Superior Courts Act binds me, and whether that should be amended is a question of legislative reform. They form an important part of an accused person's rights. We just have to manage the process.”

When discussing dates, Koen took issue with submissions from advocate Nqabayethu Buthelezi, for Zuma, that lead counsel Dali Mpofu would not be available on August 15, the new trial date. The judge said in terms of his previous order, it was clear that counsel for all parties had to keep that date open — in fact, that they had to keep the whole of the third term open for the trial.

“How now does it arise that Mr Mpofu is not available?” he asked.

After a brief stand-down, Buthelezi informed the court Mpofu would be available on that date.

Koen ordered that August 1 be the next “holding date” and excused Zuma and the Thales representative from attending court again.

Zuma has also laid criminal charges against Downer for allegedly leaking his confidential medical information to a journalist through the release of court papers which contained a report from his doctor. While the NPA has declined to prosecute, Zuma’s legal team says he will now institute a private prosecution against Downer.

Zuma’s spokesperson Mzwanele Manyi, in a television interview, said the NPA had still not issued the required certificate, confirming that it would not proceed with the criminal charges, to “trigger” the private prosecution.

“It’s a one-page document ... what is so difficult about it?” he asked.

Asked earlier this week about Zuma’s health, he said it was “on and off”.

Zuma and Thales are facing charges of racketeering, corruption, money laundering and fraud relating to the arms deal. Zuma is accused of receiving about R4m via his former financial adviser Schabir Shaik to assist Thales to secure defence contracts. Shaik was convicted in 2005 but was released on medical parole in 2009.

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