Supreme Court of Appeal yet to rule on Zuma’s ‘reconsideration’ application seeking to oust prosecutor
Jacob Zuma wants Billy Downer removed and the delay means former president’s corruption trial is unlikely to resume before August 15 at the earliest
Former president Jacob Zuma’s “reconsideration” application in his continuing bid to oust lead prosecutor advocate Billy Downer was only this week “on its way” to the desk of Supreme Court of Appeal (SCA) president Mandisa Maya.
Zuma’s application was lodged with the court on April 8, but the National Prosecuting Authority (NPA) chose not to file any papers to “speed along the process”, Downer said.
The delay in judge Maya considering the application — Zuma wants the court to overturn a ruling by Pietermaritzburg High Court judge Piet Koen who dismissed his “special plea” to remove Downer from the case — means Zuma’s corruption trial, if it even starts this year, will 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 say why it had taken so long.
“We will just have to wait,” Koen said, adding that Zuma was likely to apply to the Constitutional Court if the SCA ruled against him.
Koen, who had previously set May 31 for the trial to resume, said the holding date was now 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, whom 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. Downer had such legal standing, he said.
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 justiceAdvocate 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 that 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.
The application was now on the desk of Maya, Koen 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.”
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 his previous order 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 said.
After a brief stand-down, Buthelezi said 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 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 said in a television interview that the NPA still hadn’t 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 said.
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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