Mpofu questions authority of three judges in Zuma’s case against Downer and Maughan

It would be “chaos and bizarre” if accused persons appearing before judges in a criminal court could “pop next door” to a civil court to ask for their prosecution to be set aside.

“It is not a fashion statement that a judge in a criminal court wears red and in a civil court wears black — it symbolises the distinction between the two courts,” former president Jacob Zuma’s advocate Dali Mpofu argued on Wednesday.

Zuma is opposing a bid by senior state advocate Billy Downer — who is the lead prosecutor in his arms-deal-related corruption trial — and journalist Karyn Maughan to quash a private prosecution the former president has instituted against them.

He alleges they contravened the National Prosecuting Authority Act through the “leak” of a court document containing his personal medical records. Downer and Maughan say the document was in the public domain, that the prosecution has been brought with ulterior purpose and that the charges are baseless.

Mpofu began his argument questioning the authority of the court — a civil court sitting as a full bench with three judges — to hear the matter.

“Should it be allowed that you have a criminal matter and then you say, ‘I am just going next door to the civil court to ask them to set aside this prosecution ... I will see you later’? Imagine if all accused could do that. There would be chaos. It’s bizarre,” he said.

Zuma’s legal team argued any issue raised by Downer and Maughan must be ventilated and decided by the court hearing the criminal matter and not by judges Gregory Kruger, Jacqui Henriques and Thokozile Masipa, who are hearing the two applications in the Pietermaritzburg high court.

Mpofu said the alleged crime — of disclosing information without the consent of the National Director of Public Prosecutions — was punishable by 15 years in prison, a clear sign that legislators considered it to be very serious.

“This is no game we are dealing with here. This is one of the most egregious crimes. Sometimes murderers get less than that,” he said.

Earlier on Wednesday, advocate Thabani Masuku, also a member of Zuma’s legal team, took aim at the Helen Suzman Foundation and three organisations representing the media which had been admitted as amici curiae (friends of the court) in the applications.

He said they were not impartial but were enemies of Zuma and their submissions should not be taken seriously. They had made inflammatory statements about Zuma and his private prosecution “not based on facts”.

“They are not your friends,” he told the three judges.

The hearing continues.

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