Dali Mpofu argues Billy Downer may use prosecution of Jacob Zuma to settle scores over private prosecution

Former president Jacob Zuma in court. Picture: Sihle Mavuso/IOL Politics

Former president Jacob Zuma in court. Picture: Sihle Mavuso/IOL Politics

Published Oct 26, 2023


On Thursday, former president Jacob Zuma's legal team argued that, due to his alleged past conduct and the fact that he is being privately prosecuted by the former head of state, advocate Billy Downer (SC) is not fit to be the lead prosecutor in Zuma’s corruption case.

Advocate Dali Mpofu, arguing on behalf of Zuma, also told Judge Nkosinathi Chili of the Pietermaritzburg High Court that by allegedly leaking Zuma’s medical records to News24 journalist Karyn Maughan, Downer was meant to “embarrass” the former head of State.

In this case, Zuma is still engaged in a bid to get Downer removed as the prosecutor of his arms deal trial, arguing that he has conducted it in an unethical manner, which means he may not get a fair trial.

Zuma brought all his legal guns, advocate Thabani Masuku SC, advocate Nqaba Buthelezi, and Bethuel Thusini, his attorney of records, to court.

Mpofu also cited the case of early 2009, when the then-national director of public prosecution, Mokotedi Mpshe, withdrew charges against Zuma on the basis that the case had been tainted by interference.

Downer is alleged to have said he literally cried when that decision was taken, as he was against it and felt that the prosecution should be continued.

Mpofu told the court that it shows that Downer’s interest in the prosecution of Zuma was beyond his professional line of work.

Going back to the issue of having Downer prosecute Zuma when he has initiated private prosecution against him, he said there is a likelihood of turning it into a fight, and the basic rules of prosecuting an accused will be shelved.

The prosecution was set aside by the court, and the Supreme Court of Appeal (SCA) recently upheld the ruling.

However, Mpofu told the court that the matter is not yet over, as they are approaching the Constitutional Court to have the ruling of the SCA overturned.

He argued that if Downer is allowed to continue with the prosecution, it may create a situation where he is today prosecuted by Zuma and the following day he is prosecuting Zuma.

“On Monday, Mr Zuma is the prosecutor, Mr Downer is the accused. On Tuesday, it is the other way around.

“Does that instill a belief that the justice system is functioning? Or, says the court, there is at the very least a real risk that he will not conduct the trial properly.

“Now, surely, my lord, on any one of those three tests, we have met those tests because it might be that Mr Downer is the most angelic human being, and when he is prosecuting, he will disabuse himself of anything that’s happening in the private prosecutor,” Mpofu told the court.

Mpofu stressed that this likely situation won’t bode well for the administration of justice and giving an accused a fair trial.

“Maybe he is. But is there a real risk that he will not do that? There is because nobody can ever say that, however holy we are, you can’t say well the same person who was cross-examining me yesterday, calling me this and that, and the following day I am supposed to assume that.

“What does that do to the administration of justice? This is not a banana republic where we can just have a free-for-all.

“Surely, but one of the rights that are imbued on Mr Zuma, like all of us, is that he must be prosecuted by a person who meets the standards set out here. Surely, and it’s not personal,” Mpofu added.

During his arguments, advocate Geoff Budlender, who was representing the NPA in the matter, argued that Zuma’s legal team was raising points that have been dealt with by other courts and ruled upon.

Judge Chili reserved his judgment.

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