Zuma’s private prosecution of Maughan and Downer postponed to December

When former president Jacob Zuma appears in court in his arms deal-related fraud and corruption trial, he sits in the dock at the Pietermaritzburg high court.

On Monday, lead prosecutor Billy Downer and seasoned News24 journalist Karyn Maughan found themselves sitting in the same dock on the first day of Zuma’s “private prosecution” of them. 

This follows allegations that they broke the law when Downer “leaked” court documents to Maughan that disclosed his medical condition. Zuma sat with his lawyers.

Downer and Maughan have filed applications — to be heard by a civil court judge — in a bid to have the charges dropped, both claiming an abuse of process.

The two applications, it emerged on Monday, will now be heard together in early December. The private prosecution will be put on hold until the outcome of those, in early February.

An application by Downer for Zuma to increase his R90,000 deposit to cover his legal fees during the private trial to R1m has been settled.

Counsel for Downer, Wim Trengove, and Zuma’s counsel, Dali Mpofu, confirmed this when the matter was called before judge Nkosinathi Chili. They said an amount of R500,000 was agreed on.

In his application, Downer said R90,000 was “wholly inadequate, given that the matter would run in the high court for at least 10 days, during which Zuma intended to call more than 20 witnesses”.

Regarding the applications set aside for the private prosecution, Mpofu said Zuma’s legal team intended to argue when they were heard on December 8 and 9 that they should, in fact, be heard by the judge hearing the private prosecution, and not by another “civil court judge”.

“That is an issue to be debated... When we were on the other side, and had a similar application, we brought it before judge [Piet] Koen in the criminal prosecution. And that is how it’s done,” he said. This was a reference to Zuma’s failed application in his criminal trial to have Downer removed from as his prosecutor in terms of a special plea that he had “no title to prosecute” as he was biased.

Maughan’s counsel, Steve Budlender, placed on record that while there had been agreement that the two matters be heard together, his client still insisted that her matter should be deemed “urgent”.

“She believes it is extremely urgent because her case is that the application has been brought for the sole purpose of harassing her, intimidating her and stopping her from doing her job.

“She will contend that the summons should be set aside because it is an abuse of process and a violation of rights to free media... She wishes it to be heard as a matter of great urgency so she can get on and cover the [arms deal] trial.”

Budlender said the only reason it was not heard on Monday morning was because the judge hearing the urgent applications had a “conflict of interest”.

Mpofu said his client denied any harassment of Maughan.

“This criminal [private] prosecution is to enforce the criminal law. She was a participant in the exchange of documents, which was done without the permission of the private prosecutor [Zuma] or the national director of public prosecutions.

“There are no special rules for special accused. All must come and face the music in this court. If he [Budlender] wants to raise urgency three months later, that is his prerogative.”

He said there had been agreement between the parties to adjourn the matter until February 2 next year when, hopefully, a ruling would have been made on the two applications and “the private prosecution will be taken forward from that point on”.

In that time, said Mpofu, the docket would also be made available to Downer and Maughan.

Chili placed on record that he had been assigned only to hear the deposit application and not the entire private prosecution trial. A judge still had to be assigned for that.

Zuma served summons on Downer and Maughan to appear in court after the national director of public prosecutions declined to prosecute on the criminal charges he had previously laid against them.

At issue is the alleged “leaking” of court documents — containing the “confidential” medical report — in August last year, when Zuma’s legal team were applying for a postponement of his criminal trial because he was sick.

The report was attached to court documents filed by his lawyers and the state, which came before Koen.

Maughan admits she asked for, and received, the state’s papers before the hearing “in preparation” for covering the postponement hearing, but only reported on their contents once they were formally before the court and became public documents.

She also argues that there was no detail about his medical condition in the report.

Downer, similarly, has argued that he did nothing wrong and the private prosecution is just another ploy by Zuma to avoid trial and to boost his attempts to have Downer removed as lead prosecutor.

Zuma lost his case before Koen and subsequent appeals to the Supreme Court of Appeal (SCA) failed. The Constitutional Court recently ruled that he can appeal against the ruling at the apex court.

His criminal trial — in which he and French arms company Thales are facing charges of money laundering, corruption and fraud — is likely to be put on hold again when next he appears before Koen on Monday.

It is likely that he will argue he has a right to prosecute his appeal at the apex court, and that the private prosecution should be allowed to run its course and that he cannot be prosecuted by Downer while he is prosecuting him.

Zuma was formally released from correctional supervision on Friday when the 15-month jail sentence he was ordered to serve by the top court, for being in contempt of its order that he appear before the Zondo commission of inquiry into state capture and corruption, expired.

Zuma served less than two months behind bars — much of it in a private hospital — before being controversially released on medical grounds by former prison boss Arthur Fraser, though he remained under correctional supervision.

The Pretoria high court has since found that Fraser’s decision was unlawful.  Zuma has taken this on appeal to the SCA, which has heard argument. A ruling is pending.

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