Judgment reserved in Zuma’s latest attempt to remove Billy Downer

If Billy Downer was to be removed as lead prosecutor in former president Jacob Zuma’s arms-deal related trial, it would be the beginning of a “Stalingrad festival” with complaints against every replacement prosecutor, advocate Geoff Budlender said on Thursday.

He was arguing against a bid by Zuma, before trial judge Nkosinathi Chili, for the recusal or removal of Downer, whom Zuma accuses of prosecutorial bias, which means he would not get a fair trial.

“The truth is that Mr Zuma’s attack is not only on Mr Downer — and he has said so,” Budlender said. “We know what’s coming next. He will set his sights on the next one in line. It’s clear he wants to frustrate the prosecution.”

But advocate Dali Mpofu, for Zuma, said this was a misrepresentation of what his client had said. He had only said he doubted he would get a fair trial under any member of the present prosecution team “not all thousands of prosecutors”.

This is the second attempt to remove Downer. The first, in a special plea, was rejected by former trial judge Piet Koen.

Since then Zuma has laid criminal charges against Downer and then initiated a private prosecution against him and journalist Karyn Maughan involving an alleged leak of a document, penned by his doctor when he was in hospital in Pretoria (while incarcerated for contempt of court), alleging they contravened the National Prosecuting Authority (NPA) Act which carries a penalty of 15 years in prison or a fine of R100,000, or both.

The document was submitted to court by both the state and Zuma’s lawyer. But Zuma maintains that it was confidential and contained his personal medical records.

No fewer than three courts and eight judges, including the Supreme Court of Appeal, have ruled that the private prosecution is baseless and was instituted by Zuma for ulterior purpose to delay and obstruct his trial.

A full bench (three judges) of the KwaZulu-Natal high court set aside the summons. The court refused to grant Zuma leave to appeal but he has petitioned the SCA. 

With the appeal pending, ordinarily a judgment would be suspended, but Downer and Maughan then secured an order from the same three judges, which effectively put their ruling halting the private prosecution into operation.

Zuma challenged this in the SCA and received a battering.

It emerged at Tuesday’s hearing that Zuma has now appealed against that ruling to the Constitutional Court.

Because of this, Mpofu argued, Downer was still under threat of being prosecuted by Zuma.

“We don’t have to show that he will be convicted ... but can he (Downer) be seen to be fair and unbiased when he is appearing on one day, in this court, as prosecutor and then the next day, in the same court and before the same judge, as an accused,” he said.

Mpofu dismissed suggestions that the private prosecution, the appeals and the present application were just part of the “Stalingrad strategy or whatever” — even though the SCA, in its judgment, said this was clear.

To remove Downer, he said, he only had to show that Downer’s conduct did not match up to the standards expected of a prosecutor.

He suggested that the 20-year delay in getting the matter to trial had nothing to do with “Stalingrad”.

In fact, he said, had the NPA and Downer “done the right thing” and replaced Downer “the trial would have finished by now”.

“One year has been wasted because of the intransigence of the other side in the face of their clear ethical duties,” Mpofu said.

But Budlender said an accused had no right to dictate to the NPA who would prosecute him or her.

“The main trigger of this application is the private prosecution, but court after court have labelled that as an abuse — a hopeless case. And it is not open to him to dispute this.”

Budlender said Chili could not ignore the previous rulings — and that he was bound by them.

He also said the SCA ruling, while being appealed, was still valid until another court set it aside.

“Zuma wants to make a fool of the law and the courts. If there ever was a case of clean hands/dirty hands it is this.”

While Mpofu accused Downer of telling “blue lies” when he claimed that the medical report had already been handed in to court, Budlender said “this was not blue, white or red lies”.

Downer had done nothing wrong. He had not given the document to Maughan (a colleague did) and it had already been sent, albeit unsigned, to the judge, making it a public document.

He said a common theme of Zuma’s papers was that Downer was not indispensable “so why not just replace him”.

“The question is not whether he is indispensable, but whether an accused person can abuse the process of court and then use that to get the dismissal of the prosecutor.

“Apart from the principle, there are other practical reasons why the NPA wished to keep Downer on the team even though he has retired. It’s because of his vast knowledge of this extraordinarily complex case. The case would be severely prejudiced should he be removed.

“There is not a drop of evidence that he (Downer) acted outside the bounds of prosecutorial fairness. He has conducted his duties with skill, professionally, fairly, vigorously, zealously, with persistence and with dignity. 

“That is what is expected of a prosecutor,” he said. 

Referring to submissions by Mpofu that proof of Downer’s bias was that he had “burst into tears” when similar charges were withdrawn against Zuma (and co-accused French arms company Thales) in 2009 by then acting national director of public prosecutions (NDPP) Mokotedi Mpshe, Budlender said the story of the tears was true.

“It was because his colleagues had betrayed him. He refused to be part of it and stood up against what was going on. His insistence that Mr Zuma be prosecuted was based on an assessment of the evidence. Nothing he has done will result in Mr Zuma not getting a fair trial.”

Budlender said the removal/recusal application was “arguably in itself an abuse” and should be dismissed.

Mpofu, in reply, said Downer should concede that he had done wrong, not only in leaking the document to Maughan, but also in disclosing information regarding the case against Zuma to (then) Mail & Guardian journalist Sam Sole in 2008, which forms the basis of another charge against Downer in the private prosecution. 

Downer claims he gave Sole information only on laws surrounding mutual legal international co-operation.

But Mpofu said that in itself was a breach of the NPA Act, which decreed that a prosecutor could not give out any information at all.

“The legislator deliberately put a hefty sentence on contraventions to preserve the integrity of the justice system. It is serious. Even some murderers get less than 15 years.”

He insisted that if justice demanded it, “anyone can be replaced”.

“If Downer was hit by the proverbial bus — would that be the end of the case? Well, we would be happy, but the NPA will find another prosecutor.

“We asked the NPA to remove him. They said no. We appealed to his conscience. He said no. We are saying please find another prosecutor but don’t be blind to the (fact that) the NPA is a crime scene,” Mpofu said, referring to the fact that the NDPP had supported Downer, and was paying for his defence in the private prosecution.

Chili reserved judgment, but before he adjourned court he addressed the “elephant in the room” — that Downer and Maughan were due to appear before him in the private prosecution on November 1.

The judge inquired whether some arrangement could be made to possibly have the matter removed from the roll.

Downer, who attempted to make submissions on the issue, was shouted down by Mpofu who said “he is accused number one ... we can’t be listening to him”.

Budlender took over, saying it would be “sensible” to remove it from the roll.

However, Mpofu said he needed to take instructions from Zuma about whether he wanted to “extend the olive branch”. 

“But the point must not be forgotten that there are no special accused in this country ... whether they are tall or short, black or white, or rich or otherwise.”

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