Jacob Zuma tries again to get Billy Downer recused

Former president Jacob Zuma has done what he promised and filed yet another application for the recusal of the lead advocate in his arms deal corruption case, Billy Downer.

When the trial resumed in the Pietermaritzburg high court on Monday, newly appointed judge Nkosinathi Chili set August 15 and 16 2023 as the dates when the matter will be argued.

Zuma, in essence, is claiming he cannot be prosecuted by a man he is prosecuting.

This is a reference to his private prosecution of Downer and journalist Karyn Maughan relating to the alleged “leak” by Downer of his confidential medical records, which he says is a breach of the National Prosecuting Authority (NPA) Act. 

After the NPA declined to prosecute criminal charges he laid against Downer at the Pietermaritzburg police station, he received a nolle prosequi certificate, entitling him to institute the private prosecution.

Downer and Maughan have appeared in court twice already. But they have launched court applications to set aside the summonses. These were argued in March before a full bench of three judges in the KwaZulu-Natal division. Judgment was reserved and there is no indication when it will be handed down.

Whoever wins or loses will undoubtedly take the matter on appeal to the Supreme Court of Appeal and, possibly, the Constitutional Court.

In 2022, Zuma, in terms of a special plea, tried to oust Downer, claiming he was biased and vindictive against him.

However, this — and 13 other grounds he raised — were dismissed by then presiding judge Piet Koen.

Koen recused himself from hearing the trial earlier in 2023 when Zuma’s lawyers said they were intent on bringing another application to get rid of Downer.

In his ruling on the special plea, Koen said he had expressed strong views on the factual events at the heart of the private prosecution, essentially saying there was no merit to it

In his judgment, Koen dealt specifically with Zuma’s “leaking” complaint. He said:

• The letter from Zuma’s doctor had been submitted to court as part of an application for a postponement and that it was intended to be made public;
• Zuma and his lawyers had not asked for the report to be kept confidential; and
• In any event it did not contain anything materially confidential, it was vague and did not mention any specific medical condition or illness.

Koen said its disclosure “at best amounted to an irregularity”. 

He said the NPA Act, which bars a prosecutor from disclosing any information in his or her possession, could be unconstitutional and that it would not be unlawful for a prosecutor to deal with inquiries from the press to ensure the media was properly informed.

In recusing himself, Koen said the views he had expressed would reasonably be perceived to influence findings he would be required to make as to whether Downer should be removed.

At the brief hearing before Chili on Monday, Downer said Zuma’s latest application had been given to the state in an “incomplete form” only last Thursday. The state had received the final “voluminous” application, “some 73-pages long, with volumes and volumes of annexures” on Sunday.

“We would have liked the trial to have begun today. But we have all agreed that this application needs to be dealt with properly.”

While Chili set a timetable for the further filing of papers, unlike Koen, he did not set down future dates for the continuation of the trial, as requested by Downer, who wanted the last term of 2023 and first term of 2024 to be set aside, “given the long delays, four years, on the roll, and unresolved”.

He said the trial should not be put on the “back burner”.

Zuma’s advocate, Dali Mpofu, said: “We are quite sympathetic to the position of the state, but it cuts both ways. If we have to reserve two terms, which may or not be used, that is a serious disservice to counsel. That matter should be dealt with in due course. There are so many X factors, such as how long the judgment will be reserved for.”

He asked that Zuma be excused from the hearing of his application in August. A representative of Zuma’s co-accused, French arms company Thales, has also been excused from the hearing.

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. Both have pleaded not guilty.

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