Zuma turns to Concourt in bid for acquittal

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Former president Jacob Zuma has approached the constitutional court for leave to appeal the dismissal of his special plea alleging that advocate Billy Downer lacked the standing to prosecute him in the arms deal corruption case.

The application follows Zuma being denied leave to appeal by the high court and the supreme court of appeal. The president of the latter dismissed a reconsideration application, which Zuma then tried — unsuccessfully — to challenge in the apex court.

Zuma is due back in the Pietermaritzburg High Court on Monday, where the various applications to challenge trial judge Piet Koen’s dismissal of the plea have forced long postponements and probably have put paid to trial starting this year.

The plea was twofold. Zuma argued, in terms of section 106 (1)(h) of the Criminal Procedure Act, that Downer lacked title to prosecute him because he had abandoned impartiality.

His lawyers contended that if the court agreed with this, he then qualified for acquittal in terms of section 106(4) of the act.

Dismissing the plea, Koen said legal precedent was clear that complaints about lack of impartiality, whatever the grounds, do not affect the title to prosecute for the purposes of section 106 (1)(h). 

Precedent was equally fatal to part two of Zuma’s plea and his argument that should Downer be removed, acquittal must follow because the National Prosecuting Authority (NPA) as a whole was incompetent to pursue the graft charges against him.

In February, Koen said there was no reasonable prospect that Zuma would succeed on appeal and the appellate court concurred.

In his application to the constitutional court, Zuma insists that Koen misapplied the law and reiterates should he prove successful on appeal, he would be entitled to acquittal on the charges that have haunted him since 2007.

“This would have put an end to over 20 years of prosecutorial harassment in which a clear pattern of criminal acts adopted by Mr Downer and his fellow officials of the NPA was closely associated with my prosecution or investigation,” he claims in an affidavit signed on Thursday.

Zuma has since stepped up his attack on Downer by launching a private prosecution in which he purports to charge the veteran prosecutor with breach of section 41 of the National Prosecuting Act. 

He accuses Downer and journalist Karyn Maughan of disclosing documents in possession of the NPA 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. 

Attached to the affidavit was a letter from a military doctor stating that the former president needed urgent treatment for an undisclosed ailment. But Zuma’s legal team had attached it to his own affidavit, without claiming confidentiality, and hence it became part of the public court record.

Legal opinion is that the case is as doomed as the special plea was.

In court papers, Downer 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.