Downer must go to jail, ‘finish and klaar’, if found guilty, says Mpofu

If prosecutor advocate Billy Downer did not contravene the law by “leaking” a court document relating to former president Jacob Zuma’s medical condition, “we will apologise”, Zuma’s advocate Dali Mpofu said on Wednesday.

“But if he did, he must go to jail, finished and klaar,” he said, claiming Downer had, in his papers, already “confessed”.

Zuma has launched a private prosecution against Downer, the lead prosecutor in his arms-deal corruption case, and journalist Karyn Maughan. 

He claims they are accomplices in what he says was the leak of the medical record it was handed to court by the state and Zuma’s own attorney in an application for a postponement of the trial.

The crime carries a possible 15-year prison sentence.

Maughan and Downer are arguing in the Pietermaritzburg high court before a full bench of three judges that the summons they were served last year must be set aside. They say the charges are baseless and the private prosecution is motivated by ulterior purposes. 

Downer says the move is another step in Zuma’s “Stalingrad defence”, which he adopted 19 years ago to delay and possibly stop his prosecution.

Maughan says her constitutional right to freedom of expression is under siege, Zuma is hostile to her and wants to silence her.

Mpofu has argued that their issues would be raised in the criminal trial in a special plea, not in civil proceedings.

Mpofu said Zuma had “correctly” entered a special plea challenging the “title” of Downer to prosecute him at the start of his criminal trial.

Judge Piet Koen — who has since recused himself — ruled the issues should be properly raised either during or at the end of Zuma’s trial.

“What is concerning is we are developing special laws for Zuma — Zuma law — but if it was good for him then it should be equally good for Downer and Maughan,” Mpofu said.

“Justice must be blind, it doesn’t matter whether Zuma is the accused or the prosecutor. The same rules apply.”

Mpofu said the National Prosecuting Authority Act, which prohibits the disclosure by a prosecutor of any information or document without authority from the national director of public prosecutions or someone authorised by her, was an “elementary piece of legislation”.

It mattered not if the information or document was confidential or whether it had been reported on — those were aggravating factors that came into play during sentencing, he said. The “crime” had been committed when the document was handed over.

The purpose was to ensure the prosecuting authority was independent, fair, pure, non-partisan and that prosecutors did their jobs professionally, Mpofu said.

While it is common cause that a member of Downer’s team, advocate Andrew Breitenbach, gave Maughan the document, Mpofu said Downer had actively associated himself with “the crime”, had become aware of it and he should have reported it to the authorities.

Downer and Maughan say the document was already part of the court record at the time.

Koen has previously ruled there was nothing confidential in it and Zuma’s lawyers had not said it was confidential.

But Mpofu said the point raised by Downer and Maughan that Zuma had suffered no injury was “insulting”.

“He says he withheld information, even from his children. I am his lawyer. I didn’t know he was suffering from a life-threatening disease,” Mpofu told the court. “I didn’t know he had to wait 18 months for a particular procedure. And this information was leaked and we are told with a straight face that he has not suffered any injury.

“You don’t have to be a lawyer to know that our medical conditions are dear to us,” Mpofu added.

He said it was Breitenbach, not Maughan, who initiated the conversation about the document before he sent it to her.

“Breitenbach, Downer and Maughan tell us that there was an arrangement that she would not publish before it was filed the next day, again that is another confession, that it had not been filed.”

Mpofu said during the private prosecution there would be evidence to show that it was an “intended crime”.

Submissions that the document was submitted to Koen by Zuma’s attorney had nothing to do with Downer’s and Maughan’s alleged crime — the disclosure in the first place, he added.

Koen’s views on the issue were “just chatting” because the matter had not been properly argued before him, Mpofu said.

Lawyers for Downer and Maughan were expected to make final submissions on Wednesday afternoon.

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