Downer says Zuma must put down R1-million for private prosecution

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Senior state prosecutor Billy Downer has served notice that he is applying for the sum of money former president Jacob Zuma must commit as security to be increased to R1-million in the private prosecution Zuma instituted against him and journalist Karyn Maughan.

In papers filed to the Pietermaritzburg magistrate’s court, Downer said the figure of R90 000 that was determined by the court as security to be committed at the outset of the matter was less than a tenth of the sum realistically required.

Zuma has instituted a private prosecution against the pair for breach of section 41 of the National Prosecuting Act.

Downer, the prosecutor in Zuma’s arms deal fraud and corruption trial, noted that of the sum determined by the magistrate, R2 500 was meant to cover court costs, and the remainder as guarantee for costs he and Maughan may incur in defending the charges.

“Consequently, Ms Maughan and I each have half of the remaining R87 500, ie R43 750 as security for the costs which we may incur in our separate defences.”

But it would not, he added, be enough to cover the fees of a senior advocate for a single day.

“The amount is negligible and therefore inadequate as security for the costs which I may incur in respect of my defence,” Downer said.

He said Zuma was abusing court process with a meritless prosecution in another bid to delay the trial where he faces 12 counts of fraud, one of racketeering, two of corruption and one of money-laundering for allegedly taking bribes, via his former financial adviser Schabir Shaik, from French arms manufacturer Thales.

“The conduct and outcome of the private prosecution are thus matters of significant public import and national interest beyond my own interests,” Downer said.

As such, he said he was compelled to defend the charges vigorously and this would entail engaging one senior advocate and two junior counsel.

Senior counsel charge R54 000 a day and the fees for two junior counsel would come to R45 000 a day. Zuma has filed notice that he intends to call 23 witnesses. Downer said he was not sure, without having seen who those were, how many he would call in his defence but he expected that the trial should run for at least 10 days and estimated that the defence’s legal fees would total R1.058-million.

Zuma accuses Downer and Maughan of disclosing documents in possession of the National Prosecuting Authority without the permission of the national director of public prosecutions. At issue is a copy of an affidavit filed by Downer in response to an application from Zuma for a postponement in his corruption trial. Zuma had to his own affidavit attached a letter from a military doctor stating that the former president needed urgent treatment for an undisclosed ailment.

It was also attached to Downer’s affidavit. Maughan was given copies of both affidavits by counsel for the NPA. Both affidavits, plus the medical note motivating for a postponement, became part of the public court record before she published an article on News24 on the application for a postponement. 

But Zuma is alleging that his medical information was leaked, despite the fact that he failed to claim confidentiality when he filed the letter to the court. 

He laid charges against Downer with the police in October last year but the state declined to prosecute the matter. This happened mere days before the high court predictably dismissed a special plea he had brought in Criminal Procedure Act, arguing that Downer was not sufficiently impartial and therefore lacked standing to prosecute him.

It is not clear how Zuma, who pleads penury, is financing the cost of the private prosecution. 

Downer, in his review application, said the additional sum needed must be paid in cash or by bank guarantee.

In the circumstances, which include a bank last month foreclosing on the loan Zuma took to refund the state for improvements to his Nkandla home, Downer submitted that a bank guarantee was needed.

“It is necessary due to the fact that the court has as recently as August 2022 granted the curator of VBS Mutual Bank an execution order for the private prosecutor’s [Zuma’s] outstanding debt that is due to VBS Mutual Bank,” Downer said.

“I have no confidence that the private prosecutor will in future be able to settle the costs incurred for my defence, in the absence of the security I require.” Downer added.

Zuma also owes the state some R18-million for legal fees covered, without lawful authorisation, in the corruption trial.