Zuma’s special plea for recusal of prosecutor dismissed by court

In a judgment handed down in the Pietermaritzburg High Court on Tuesday Judge Koen dismissed the special plea raised against State Prosecutor Billy Downer that he has no “title” to prosecute former president Jacob Zuma.

Zuma alleged that Downer is conflicted and biased, placing his rights to a fair trial in jeopardy.

The special plea was raised under Section 106(1)(h) of the Criminal Procedures Act (CPA).

Charges faced by Zuma and Thales

Zuma and French arms company Thales face various charges, including participating in an organised criminal enterprise between 1995 and 2004; racketeering; accepting/paying bribes and gratifications by covert means; acting in a manner that is illegal, dishonest, and/or biased in carrying out functions; money laundering; and fraud.

Both parties have pleaded not guilty to all the charges.

Read: Criminal charges put to Zuma and Thales

Using so-called Stalingrad tactics, Zuma has used every tool in the legal trade to delay his criminal trial, spawning a litany of judgments.

Koen referred to previous Supreme Court of Appeal (SCA) judgments, which in 2009 referred to the Zuma litigation as having a “long and troubled history and the law reports are replete with judgments dealing with the matter” (per National Director of Public Prosecutions v Zuma (Mbeki and another intervening) [2009]), and in 2017 likening the litigation to TS Elliot’s “the recurrent end of the unending” (per Navsa JA in Zuma v Democratic Alliance and others; Acting National Director of Public Prosecutions and another v Democratic Alliance and another [2017]).

Trial delayed since May

The trial should have commenced on May 17, but notice of the special plea had not been given, and it was adjourned to July 19.

On June 29, the Constitutional Court found Zuma guilty of contempt of court for ignoring its directive to appear before the Zondo Commission, and imposed a 15-month prison term. Zuma was committed to the Correctional Service Centre at Estcourt shortly before midnight on July 7.

Read: Zuma may have reached the limit of outrunning the law

An unprecedented wave of arson and violence erupted, which spread from the destruction of cargo and trucks at Mooi River to elsewhere in KwaZulu-Natal and on to Gauteng. Koen referred to the “large scale looting, violence and the destruction of many businesses and structures”.

At that time, the Covid-19 pandemic had entered the third wave, and the Level 4 lockdown was extended.

The Pietermaritzburg High Court was rendered inaccessible, exacerbated by the inaccessibility of the N3 and the absence of flights to the city.

Zuma raised many arguments against a virtual hearing, including that his rights would be prejudiced, and that there is no legal justification for a criminal trial to be heard virtually.

Koen agreed to move the date to August 10, for a live hearing. However, Zuma was then hospitalised, and the matter was postponed to September 9 and 10.

Zuma was released on medical parole due to his “deteriorating ill health” on September 5.

The matter was again adjourned, to September 21 and 22.

Zuma waived any right to be present during the special plea proceedings.

The issues for determination

The court had to determine whether Downer lacks title to prosecute as provided in Section 106(1)(h) of the CPA.

Koen opined that “any infringement of fair trial rights” can only be determined when evidence has been led in the criminal court, and “the credibility to be attached to the evidence has been properly assessed”.

He referred to S v Van Der Westhuizen [2011] in which the court found that in adversarial criminal proceedings it is inevitable that prosecutors are perceived to be biased, and that they must construct and present a case for the purpose of obtaining a conviction.

Koen questioned how Downer’s involvement in or knowledge of certain facts or circumstances would impinge on Zuma’s right to a fair trial, and held that the remedy for ensuring that an accused receives a fair trial is not contained in Section 106(1)(h), and has nothing to do with the prosecutor’s title to prose.

Rehashing previous allegations

Zuma’s counsel raised issues previously dealt with by the courts, such as former national director of Public Prosecutions Bulelani Ngcuka’s decision not to prosecute Zuma together with Schabir Shaik. However, this was rejected by the court in S v Zuma and another, and Thales South Africa (Pty) Limited v KwaZulu-Natal Director of Public Prosecutions and others [2019].

Koen dismissed the various allegations made, most importantly:

• That it was an unavoidable consequence that the state’s evidence at the Shaik trial would implicate Zuma.
• That Downer was not implicated by Judge Nicholson’s findings of political interference (in Zuma v National Director of Public Prosecutions), which was in any event set aside on appeal (National Director of Public Prosecutions v Zuma (Mbeki and another intervening) [2009]).
• In regard to the ‘Browse Mole’ Report and the Spy Tapes, Zuma suffered no reputational harm “as a result of any purported political manipulation of the timing of the prosecution process” , and this did not prevent him from being elected President in 2009, and to continue in that position for just under nine years. And it had not been shown that Zuma’s rights to a fair trial were impeded in any way.
• The allegations that Downer’s immediate boss, McCarthy, was in contact with foreign intelligence agencies, were “speculative conclusions” with no factual basis.
• There was no factual basis to the allegation that Downer was aware of political interference and failed to report it, or that he was in possession of any evidence to justify laying any charges against his superiors.
• Downer’s alleged leaks to the media “are based on speculation, unsupported by admissible evidence from [Mr] Zuma.”
• Downer had not leaked information to Sam Sole of the Mail & Guardian in 2002. Sole had relied on an affidavit which was deposed to by Shaik on September 26, 2002, which was a matter of public record, to write an article.
• The allegations that the State appointed a medical doctor to examine Zuma in the hospital, were not confirmed by Zuma in an affidavit, and are “hearsay and inadmissible”.
• Downer had not made the decision to prosecute Zuma. Advocates Vusumzi “Vusi” Pikoli and Mokotedi Mpshe had made these decisions in 2005 and in 2007 respectively, with input from the prosecution team and the head of the Directorate of Special Operations (DSO). In 2018, Advocate Shaun Abrahams, after the judgement of the SCA in the spy tapes case, was of the view that the prosecution of Zuma had a reasonable chance of success

The criminal trial will now proceed.