Home South African Zuma files fresh application for Downer’s removal from arms deal case

Zuma files fresh application for Downer’s removal from arms deal case

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Former president Jacob Zuma has filed a new application to arms deal trial Judge Nkosinathi Chili, asking for State advocate Billy Downer to be removed from the trial when the matter is heard in August.

Former president Jacob Zuma during a previous court appearance. File picture: Timothy Bernard, African news Agency (ANA).

FORMER president Jacob Zuma has filed a new application to arms deal trial Judge Nkosinathi Chili, asking for State advocate Billy Downer to be removed from the trial when the matter is heard in August.

Zuma’s new application for Downer’s removal is based primarily on the fact that the former president is seeking to privately prosecute Downer for breaching the National Prosecuting Authority Act for allegedly sanctioning the leaking of confidential medical information in 2021 to News24 journalist Karyn Maughan. His original basis for Downer’s removal was based on a special plea application.

Previous trial Judge Piet Koen recused himself from the case in January because he had dealt with Zuma’s initial application for Downer’s removal and ruled against it.

Downer on Monday told the court that they had received a full application from Zuma’s legal team on Sunday and that the State and both Zuma’s and Thales’ legal representatives agreed that the State needs time to properly deal with the new application.

“This is a voluminous application of some 73 pages long, with volumes and volumes of annexures.”

Downer said as much as the State would have preferred to go on with the trial on Monday, they all agreed that this was not possible.

Zuma’s advocate, Dali Mpofu, on Monday apologised to the court for the lateness of the application, saying this was due to issues beyond their control.

In his papers, Zuma said his application for Downer’s removal is based on “three main separate but interrelated pillars which are premised on the relevant factual complex and the applicable law”:

  • That Downer is presently in the dock as an accused person in a private prosecution in which Zuma is the private prosecutor and this disqualifies him from acting as a prosecutor in the arms deal matter.
  • The nature of the charges faced by Downer in respect of the 2021 information leaking incident, which also sufficiently disqualifies him.
  • The nature of the charges faced by Downer in respect of the 2008 information leaking incident, which also sufficiently disqualifies him. (Zuma says there is prima facie evidence that Downer had discussions about his prosecution with investigative journalist Sam Sole in 2008.)

“Any single one of the above-mentioned grounds on its own would be enough to justify the granting of the relief sought. Cumulatively they all provide an insurmountable hurdle against Mr Downer’s intended continuation in the role of lead prosecutor and/or prosecutor in the public prosecution,” Zuma said.

He said that Downer remaining the prosecutor in the arms deal trial will amount to a violation of his rights to a fair trial.

“I believe I can no longer have a fair trial as guaranteed in Section 35 of the Constitution if Mr Downer remains the prosecutor in the matter.

“The evidence is that his overall conduct in relation to my prosecution is inconsistent and incompatible with my right to a fair trial,” he said.

Zuma said Downer’s efforts to have his private prosecution set aside were aimed at further delaying his trial.

“What is important, however, is the fact that Mr Downer is also personally litigating against me in civil motion proceedings under case number 13062/22P in this court and both he and the NPA (National Prosecuting Authority) still refuse to accept that this is but another ground that constitutes conflict. The conflict is again such that it meets the test of a perception that objectivity (of a prosecutor) is compromised as set out in the NPA’s manual on ethics,” Zuma said.

Zuma said Downer should have been removed as prosecutor by the NPA as soon as he issued a private prosecution summons against Downer.

The State will file its answering affidavit on May 26 and Zuma has to file his papers in response by June 19. This will be followed in June and July with both parties’ heads of arguments.

Judgment in Downer and Maughan’s application to have the private prosecution set aside is expected on August 4.

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