NPA has power to intervene in Zuma’s private prosecution against Downer – expert

Even if Jacob Zuma goes ahead with his private prosecution of advocate Billy Downer, the National Prosecuting Authority (NPA) says Downer will still prosecute Zuma’s corruption case, which is due to start on 15 August.

And the private prosecution could also leave Zuma facing further legal suits if Downer issues writs against the former president for malicious prosecution.

While Zuma and his legal team sought Downer’s removal, the NPA stood firm after issuing a nolle prosequi (private prosecution) certificate to Zuma’s legal team, which laid  criminal complaint against Downer over his alleged “leaking” of Zuma’s medical evidence.

NPA spokesperson Mthunzi Mhaga said they considered the action against Downer – an “abusive private prosecution”.

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“The NPA agrees with the DPP that the charges laid against Downer are baseless and cannot be sustained, hence her decision not to prosecute him,” he said “Downer has the NPA’s full support and will continue to lead the prosecution team against Mr Zuma and Thales.”

Criminal law expert advocate Mannie Witz said Downer could prove the action against him was malicious if the prosecution was initiated without any reasonable prospect of success.

It was not that easy to sue for malicious prosecution because everyone could be acquitted if it was on a bad technicality or a bad witness, Witz said.

“It is not easy to show why it was malicious but, there is the potential of it.”

Last month, the Supreme Court of Appeal (SCA) dismissed Zuma’s reconsideration application for Downer’s removal.

The trial had been deferred to 1 August for the SCA’s decision on the former president’s application after Judge Piet Koen in February dismissed his application for leave to appeal.

Zuma then saw his special plea to have Downer removed dismissed last October.

Witz said Downer was an advocate from the beginning and knew the case well.

He was not a new prosecutor and had consulted and prepared for this case.

“The state believed there is no evidence to prove beyond reasonable doubt there is enough evidence for them to meet with Downer,” he said.

READ MORE: Billy Downer didn’t leak medical records, says NPA

Despite the state allowing Zuma to proceed with his private prosecution, Witz said it was interesting how the NPA still had the power to intervene in the private prosecution.

“If one is busy with the private prosecution and had witnesses or not, and if the director of public prosecutions feels the answer is there, they can intervene and take the matter over from the private prosecutor. They still have a say.”

With Zuma’s legal team having three months to pursue the private prosecution, his foundation’s spokesperson, Mzwanele Manyi, said prosecution proceedings would be instituted before 6 September, when the certificate expired.

Manyi said the draft charge sheet was ready and they looked forward to seeing Downer and his “two accomplices” in the dock.

He noted the draft charge sheet would consist of Downer’s charges, which included revealing information being investigated, which was a major transgression.

“Evidence for this is found in his own affidavit where he made an admission – a journalist was given information at a particular time and the journalist was told to hold on to information.”

Manyi claimed advocate accused number one would be Downer.

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“Between Adv Andrew Breitenbach and [News24 legal jounalist] Karyn Maughan, one of them is accused two and the other is three, I am not sure the order,” he said.

Adriaan Basson, editor-in-chief of News24 said they would “defend any legal action instituted against us or our journalists by Mr Zuma”.

“We believe this is an attempt by Mr Zuma to intimidate the media and muzzle critical reporting of him,” Basson said.

“We shall not be intimidated and will continue reporting on him in the public interest.”