High court dismisses Zuma’s plea for state prosecutor Billy Downer’s removal in arms deal corruption trial

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The high court in Pietermaritzburg has dismissed Jacob Zuma’s plea that state prosecutor Billy Downer be removed from the arms deal corruption trial that flows from charges he first brought against the former president 16 years ago.

On Tuesday, the court found that Zuma had misdirected himself in law and that both parts of his special plea, the first seeking the prosecutor’s removal and the second his acquittal, should fail.

Judge Piet Koen set April 11 as the date for the trial to commence and warned Zuma, who was in court on Tuesday, to attend, and clarified that with respect to his fitness to stand trial, he must submit to medical examination by an independent doctor should the state so wish. 

Zuma’s legal team immediately hinted that he may seek to appeal the dismissal of his special plea. However, contrary to speculation, such an application will not in this instance suspend the trial. 

Advocate Thabani Masuku asked Koen whether his client could be excused from attending court in the interim should the defence file any interlocutory application in the interim which had nothing to do with the trial itself “but with this matter”.

He added: “It could be an application for leave to appeal.”

Koen, reading a summary of his 107-page judgment, said Zuma’s essential argument was that his fair trial rights, as guaranteed by section 35(c) of the Constitution, were under threat because Downer lacked impartiality and therefore title to prosecute.

This first part of the plea was brought in terms of section 106(1)(h) of the Criminal Procedure Act and saw Zuma argue that Downer had failed to uphold the standards of prosecutorial independence and impartiality needed to ensure that his trial was fair and conducted in accordance with the Constitution and the common law.

Zuma further alleged that Downer had behaved in such a manner that he had made himself a witness as to the question of whether there was political meddling in the case.

“The central issue is whether the alleged lack of independence and impartiality or Mr Zuma’s concern that he might not enjoy a fair trial will negate the title to prosecute which Mr Downer would otherwise enjoy,” he said.

Koen said it was nowhere alleged that Downer was not properly appointed and authorised in terms of the Constitution and the National Prosecuting Authority (NPA) Act to prosecute Zuma, and the court’s inquiry needn’t go beyond this question.

It had to consider what was meant in law by title to prosecute and the proper reading was a narrow one where Zuma’s arguments of zeal or lack of impartiality on Downer’s part did not enter consideration. 

“I have concluded that title denotes standing, as in locus standi, which is a legally recognised interest,” he said, adding that the law made no distinction here between public and private prosecutors.

This was important as the standing or interest which a private prosecutor was “required to have in the subject matter they prosecute is incompatible with the notion of them being independent and impartial”. 

“If a lack of independence and impartiality would deprive a public prosecutor of his or her title to prosecute then very few, in any private and statutory prosecutors by the very nature of the interest or standing they are required to have in the first place to prosecute would have the title to prosecute,” said the judge.

The correct conclusion was therefore that title to prosecute cannot be negated simply because a prosecutor might not be independent and impartial, Koen said, adding that this interpretation was consistent with that of the Supreme Court of Appeal in Porritt and Another v the National Prosecuting Authority.

That judgment was binding on the high court, even if Koen disagreed with it — which he pointed out he did not — and has always bode ill for Zuma’s special plea hopes.

Koen said the Supreme Court of Appeal was clear that the protection of an accused lay not in a general standard of impartiality required of prosecutors but in the right to a fair trial as enshrined in section 35.

The question was ultimately not whether the prosecutor was biased but whether the accused would receive a fair trial, he said, and the kind of complaint Zuma tried to put before the court should have been raised in a substantive, separate application for the removal of the prosecutor.

“In the present matter there is no such application before the court for adjudication. The sole issue … is whether the special plea in section 106(1)(h) has been established. I conclude that Mr Zuma’s complaints, even if taken at face value, do not affect ‘the title’ given its correct meaning in section 106 (1)(h) of Mr Downer to prosecute,” Koen said.

He moved on to dismiss the argument by Zuma’s counsel that should the law not fit, it be developed to cater for cases like this.

“I also conclude that there is no basis to assign a wider meaning to the word title to include instances of a lack of impartiality or bias on the part of the prosecutor by developing the law in terms of section 39(2) of the Constitution … as adequate remedies already exist in our law to cater for the situation where the fair trial rights of the accused would be infringed,” he said.

As the plea for acquittal, brought in terms of section 106(4) of the Criminal Procedure Act, hinged on the success of that for Downer’s removal, the court did not need to consider this further.

Turning to Zuma’s allegations of instances where Downer abandoned impartiality, Koen dismissed these as largely “based on speculation, inadmissible hearsay evidence and not fact”.

In the few instances where they could at best be seen as possible irregularities, these were not of a nature demanding Downer’s removal.

Zuma had alleged that Downer had turned the arms deal trial into a personal crusade, pursued in the knowledge that at the time the wider NPA was tainted by political influence, which inter alia led to manipulation as to the timing of his indictment.

But in a protracted argument in September, counsel for the NPA countered that Downer deserved an apology for being maligned and a medal for resisting impropriety within the entity. 

“He was the one who stood up for justice and truth every time, stood up to his bosses every time,” advocate Wim Trengove said, after describing the application as “Stalingrad season 27”.

As it was widely expected to fail, Zuma’s decision to lay criminal charges against Downer with the police last week can perhaps be read as a back-up tactic in his timeworn delay strategy. 

In his statement to the police, he seeks to revive several of his complaints against the prosecutor but adds another, namely that Downer authorised the NPA’s legal team to give a journalist an affidavit referencing a certificate stating that Zuma had suffered an unnamed medical emergency to a journalist, under embargo, the night before it was formally filed at court.

The charges were laid in terms of section 41(6) of the NPA Act. It prohibits the disclosure of confidential information without the express permission of the national director of public prosecutions.

The NPA denies any wrongdoing, noting that it signed a confidentiality agreement with regard to the former president’s detailed medical records.

Zuma’s legal team had earlier this year, before he was granted medical parole for his imprisonment for contempt of the Constitutional Court, raised the spectre that he might be too ill to stand trial for corruption.

Koen had in August made a ruling that the state may appoint a medical expert of its choice to examine Zuma and, if necessary, give evidence as to whether he was able to stand trial. But Zuma’s lawyers argued that this was dependent on a medical report first being produced by the former president’s doctors.

They accused Downer of trying to breach the order by sending medical doctors to examine Zuma, which he refused to allow. Koen said he dealt with his earlier order in paragraph 284 of Tuesday’s judgment for the sake of clarity.

“I have clarified in my judgment that the order which I granted was unconditional and not qualified in that way and that Mr Zuma was required to submit to medical examination by a doctor or doctors of the state’s choice to determine whether he is fit to attend court.”

Zuma’s appeal bid as to the special plea would face a double hurdle. Firstly, he would have to satisfy the requirement that there is a reasonable prospect another court would come to a different conclusion. That is unlikely here, given the legal precedent. Secondly, the Wahlhaus rule holds that superior courts require particularly compelling grounds to interfere in the unterminated course of a trial in a lower court.