Downer says Zuma has been tripped up by his Stalingrad tactics

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Jacob Zuma should not be allowed further delay in his arms deal corruption trial by virtue of an application for leave to appeal an interlocutory ruling he filed to the apex court at the eleventh hour, state prosecutor Billy Downer argued before the Pietermaritzburg high court on Monday.

Downer submitted that the application Zuma filed on Friday to the constitutional court to appeal the dismissal of a special plea surrounding his status as prosecutor in the matter, was out of bounds because he was in effect seeking a second bite of the cherry in terms of recourse to the highest court.

It was also out of time because, had he taken the correct course, the deadline for him to do so lapsed in early June. The long and short of it was that Zuma had tripped himself up with his Stalingrad strategy of delay and missed the deadline for an appeal to the apex court.

The background to this argument is that trial judge Piet Koen in October last year dismissed Zuma’s complaint, in terms of section 106(1)(h) of the Criminal Procedure Act, that Downer lacked title to lead the prosecution because he was not impartial. Koen denied Zuma leave to appeal in February. The supreme court of appeal followed suit in March.

Zuma then filed an application in terms of section 17(2)(f) of the Superior Courts Act, pleading with then SCA president Mandisa Maya to refer the matter back to the bench for reconsideration. 

In the interim, Koen reluctantly granted a long postponement until Monday, as a holding date, for these processes to be concluded. He said the law left him no discretion, as the application to Maya suspended the operation of his October ruling that Downer was not disqualified.

On 20 May, Maya rejected Zuma’s application.

His defence team then asked the apex court for leave to appeal her decision. On 23 September, the court denied him leave. The lawyers then waited until the last possible day before Monday’s court date to return to constitutional court with the application for direct leave to appeal Koen’s judgment dismissing the special plea. 

If there could be any doubt that this was designed to prompt another postponement, it was settled by a statement from Zuma’s spokesman Mzwanele Manyi on Sunday, saying the former president would not be present at court because the application meant that the matter could not proceed.

“Judge Koen had reserved the 17th as a holding date, hoping that by then all other things had been cleared,” he said in a voice note to the media.

“Clearly not everything has been cleared.”

Downer argued that the application had no such effect and that Koen should order the trial to proceed on 7 November, as Zuma had exhausted his options for appeal of the judgment on the special plea. 

He added that Zuma’s defence team was now contending that it can be deduced — “by some miracle of law and interpretation” — from the wording of the constitutional court’s order on 23 September, that it was allowing him to come back with another application, this time for a direct leave to appeal as he did on Friday.

Instead, he said, the court was simply referring to the law and the applicable law is that Zuma was not entitled to seek to appeal Maya’s decision to the apex court. In instances like this, where reconsideration is refused, the matter reverts to the ordinary default appeal process. 

Here, Zuma’s correct option was to approach the apex court for leave to appeal against Koen’s October judgment and his February refusal to allow leave to appeal. But instead, Zuma “chose to go on a strange appeal to the constitutional court against the president’s order”.

There was only one possible explanation for this, Downer submitted.

“Why would any litigant seek to use that route and not apply on the merits against your lordship’s two judgments … and avoid an application on the merits to constitutional court?” he asked.

“We say that it does not appear that there could be any other reason other than that you want to avoid an early constitutional court final decision relating to the merits of your lordship’s judgments. Why else would you do it? Because clearly they want to appeal against the merits but they don’t do it. 

“They don’t want a final judgment from the constitutional court because, we submit, because they fear a final decision and that that would then allow the trial to continue. And we have argued before that this is in line with what has come to be termed from this case, and a series of cases, the Stalingrad approach.”

Downer added that had the application Zuma filed on Friday been in order, he would have needed to seek condonation for late filing, which he did not do. But even if he should attempt to do so now, this would still not cure the inherent flaw of his application flouting legal precedent.

This meant, he continued, that there was no longer any reason for Koen to postpone the matter and no suspension, pending an appeal, for the operation of his dismissal of the special plea filed in terms of section 106 of the Criminal Procedure Act.

The judge had done so in May to allow the route Zuma had taken under section 17 of the Superior Courts Act to run its course. Therefore, Downer said, the trial could at last proceed on 7 November, the preliminary date set by Koen in August.

Zuma’s counsel complained that Koen should not have allowed Downer to argue the above points because there was no formal application for a postponement from their side. Instead, he believed, the morning’s hearing was a simple status meeting in light of papers filed.

“Instead, we’ve been subjected to an entire legal argument with regard to a non-existing application. That, My Lord, and the fact that it was done in the absence of the accused speaks to section 35 rights of the accused that have now been jeopardised in this matter,” advocate Sifiso Buthelezi said.

Koen, in Downer’s defence, said he had responded to a submission by Zuma’s team in correspondence over the weekend that their view was that there was now an appeal pending, hence section 18 of the Superior Courts Act kicked in and suspended the judge’s ruling of October last year – meaning the trial remained on hold because Downer’s had not been settled. 

“The point that he was raising is that there isn’t a proper application for leave to appeal pending because it is out of time,” Koen said.

Buthelezi argued that Downer’s reading of the case law was wrong and that his client had a right to approach the constitutional court both to appeal Maya’s refusal and to appeal his ruling last year. Further, he said, the timeframe for him to file the latter should be counted from 23 September, hence there was no delay and no need for condonation.

“If we follow Mr Downer’s flawed logic, it tells you this is how it should have played out. On the date the president refused the 17(2)(f) application, two things should have happened,” he continued.

“We should have filed an application to the concourt appealing the section 17(2)(f) application simultaneously along with an application appealing your judgment. That is an absurd proposition… the absurdity of what Mr Downer says is we should have parallel-run those two applications. What could the constitutional court decide?”

It was only now, he added, that the apex court could decide the merits of the bid for appeal and, because an application was pending, the high court process was subject to an appeal and the high court trial could not proceed.

Koen asked when then, in the defence’s view, the trial could resume.

Buthelezi pleaded that it be placed on hold till the second term of 2023, the first being out of bounds because advocate Barry Roux, who represents Thales, the second accused, had other commitments.

“It is four months hence,” Koen remarked.

Buthelezi said it was nonetheless the only sensible option. Should the apex court dismiss Zuma’s application, the high court proceedings could resume. But should it be granted, time should be allowed for the matter to be argued and decided. 

If this happened, and the apex court found in Zuma’s favour that Downer lacked title, the defence would then argue the second part of the special plea, which was that Zuma should be acquitted.

But he also raised the spectre of the defence putting forward the argument that Downer should withdraw because Zuma had brought criminal charges against him in a private prosecution. 

In reply, Downer said he appeared in court on the instructions of the head of the National Prosecuting Authority, hence it was not for him to withdraw. He added that if prosecutors were to do that because defendants raised complaints against them, without regard to the merits of those complaints, “our justice system would be in a sorry state”.

Koen said he would deliberate and would pronounce on Wednesday. 

Zuma 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  Thales.