Bernadette Wicks
Senior court reporter
3 minute read
2 Jun 2021
6:25 pm

Downer hits back at Zuma: Trial will go on, with or without me

Bernadette Wicks

Prosecutor Billy Downer says Zuma’s special plea is misplaced, adding that he had been designated to prosecute the arms deal case by two ex-directors of public prosecutions.

Billy Downer, head of the prosecution, in court during Schabir Shaik's fraud and corruption case, at the Durban High Court on 5 April 2006. Picture: Gallo Images

The lead prosecutor in Jacob Zuma’s corruption trial, Billy Downer SC, has shot back at the former president’s claims that he’s “turned the prosecution into a personal legacy project”.

“[Zuma] is mistaken in thinking that the reason he is being prosecuted is because I want his prosecution and conviction to be my legacy.

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“The real reasons he is being prosecuted are, following the orders of the court in the spy tapes and permanent stay matters, the state believes that it has at least reasonable prospects of success and it is important that the charges against him be tried by this court,” Downer said in an affidavit filed in the KwaZulu-Natal High Court, in Pietermaritzburg, on Wednesday.

This in response to Zuma’s special plea challenging Downer’s title to prosecute and calling for his recusal. In addition, if he’s successful, Zuma also wants to be acquitted.

His trial finally kicked off last month, with Zuma and his co-accused in the case, French arms dealer Thales, both pleading not guilty. But it was then postponed, after Zuma’s legal team put his special plea on record.

In an affidavit he deposed in support of his special plea, Zuma argued Downer was without “the attributes necessary for a fair trial – independence and impartiality”.

But Downer said he was designated to prosecute the case by the former directors of public prosecutions (DPPs) in KwaZulu-Natal, Moipone Noko, and her successor, ELaine Zungu, adding that Zuma’s special plea was misplaced.

He said Zuma could have brought an application for his removal and replacement.

“What such an accused may not do, however, is seek such removal through the device of a special plea in terms of section 106(1)(h) of the Criminal Procedure Act [CPA],” said Downer in his affidavit.

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Even if the court were to uphold it, Downer insisted his colleagues could carry on the case without him and Zuma would not then be entitled to demand an acquittal.

That would amount to granting him a permanent stay of prosecution, Downer argued, when Zuma already brought an application for a permanent stay of prosecution back in November 2018 and it was dismissed.

He said Zuma was not allowed to seek the same relief he sought then, now.

“His claim for that relief has been finally adjudicated upon by a court of competent jurisdiction,” he said.

The case centres on the dodgy multi-billion rand arms deal the state struck with Thales in the 1990s.

Zuma is accused of receiving kickbacks through his former financial advisor, Schabir Shaik, in exchange for shielding Thales from investigations.

Shaik was charged with corruption in 2003 and after he was found guilty in 2005, the state went after Zuma and Thales.

The state’s case wound up being struck from the roll the following year. In 2007, it was reinstated but then in 2009 the National Prosecuting Authority (NPA) withdrew the charges in the wake of the spy tapes saga.

In 2017 and on the back of a case lodged by the Democratic Alliance (DA), however, the Supreme Court of Appeal (SCA) overturned that decision. And in 2018, the case was again reinstated.

Downer also pointed to the SCA’s ruling in his affidavit and said between that judgment and the judgment dismissing Zuma’s application for a permanent stay of prosecution, that “almost all of the issues which he raised in the present proceedings were raised and decided, adversely to him”.

Zuma is due back in court next month, when the special plea is set down for hearing.