The Pietermaritzburg High Court is today set to rule on whether former President Jacob Zuma has reasonable grounds to be given the legal nod to approach the Supreme Court of Appeal in his battle against senior NPA prosecutor, advocate Billy Downer SC.
Today’s ruling follows a January 31, 2022, decision by Judge Piet Koen to reserve his judgment following a day-long oral argument by Zuma’s legal team, led by advocate Dali Mpofu SC (senior counsel), which argued that another court may rule differently.
In the main, Zuma, who will skip the judgment, wants Downer to be removed as the chief prosecutor of his arms deal corruption case, accusing him of compromising bias against him and having acted unlawfully on several occasions while handling confidential information.
In his long arguments, Zuma has accused Downer of previously leaking information about his corruption trial to third and unauthorised parties, including CIA spies and some local media houses.
He also accused Downer of leaking his confidential medical report to a journalist.
In October last year, handing down a summary of his first judgment dismissing Zuma’s application, Judge Koen noted that all the arguments advanced by Zuma and his legal team, when they orally argued why Downer should be removed, had been previously exhausted.
Dealing with the first issue, of whether Downer has the right to prosecute or not, Koen said Zuma's argument was far-fetched as the senior prosecutor was constitutionally mandated to lead his prosecution.
He also dismissed the argument that Downer lacks the independence and impartiality to lead his prosecution, as doing so would taint the case and impugn all the rules of a fair trial. Koen said if such an excuse would be advanced against prosecutors, few, if any, would lead prosecutions of charged people.
Going on, Koen said the matter was wrongly pursued.
Undeterred, Zuma and his legal team lodged an appeal and the grounds for their appeal was heard on January 31 this year. Mpofu, assisted by advocate Thabani Masuku, led the legal team.
Mpofu opened his argument by saying if we are all equal before the law, courts should not treat Zuma differently, or have laws that are only applied to the former president.
Furthermore, he argued that it was unjust to allow Downer to head the prosecution, and for Zuma to only complain later.
"How can that be justice?" Mpofu asked Koen on the day.
He stressed that Zuma could not be told to wait for the trial to end before he could complain about Downer. This was in response to Judge Koen ruling late last year that the former president could only appeal at the end of the trial, when the evidence had already been led.
Mpofu also reminded Judge Koen that on October 21, 2021, Zuma laid criminal charges against Downer, saying that while the senior NPA prosecutor was not an accused, at best he was a "suspect" because he was being investigated by the SAPS for alleged misconduct.
The NPA had previously said that it was confident that its legal team had argued the case correctly, and the court would eventually rule in its favour by denying Zuma the right to appeal.
Political Bureau