Call our ‘bluff’, remove Downer and get on with the case

Jacob Zuma’s legal team looks to be trying to flip the script, insisting if anyone is delaying his arms deal trial it’s the
prosecuting authorities and questioning why state doesn’t “call his bluff”, remove lead prosecutor Billy Downer from the case and get on with it.

Last year, the former president and his co-accused in the case, French arms dealer Thales, finally pleaded not guilty to charges of corruption, fraud, money laundering and racketeering. The trial has since stalled as a result of
Zuma also having raised a special plea, challenging the title of state advocate Billy Downer, SC – and the National
Prosecuting Authority
(NPA) – to try him, claiming he was the victim of prosecutorial bias and couldn’t be guaranteed a fair trial.

KwaZulu-Natal High Court in Pietermaritzburg Judge Piet Koen last October dismissed the special plea but Zuma subsequently lodged an application for leave to appeal the decision and this was argued on Monday. During his address, advocate Andrew Breitenbach, SC, for the state, argued, among others, the special plea was “the latest in a long line of preliminary cases brought by both of the accused which have had the effect of obstructing and delaying the start of the process”.

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But Advocate Dali Mpofu, for Zuma, slapped back that his client wasn’t trying to avoid trial.

“Nothing could be further from the truth,” he told the court.

“He’s entitled to all the protections provided by our law, the constitution and section 106(1)(H) of the Criminal Procedure Act [under which the special plea was raised] not to be tried by a prosecutor who harbours ill feelings towards him or at least that he perceives to.”

He further questioned why the NPA didn’t simply “call his bluff” and remove Downer from the case if this was what it believed Zuma’s ultimate goal was.

“Why do we have to go through all this so Mr Downer can prosecute? Are there no other prosecutors
in this country? If there’s anyone who’s delaying this trial unnecessarily it is them… They must cling and hold on for
dear life to this one prosecutor.”

Earlier in proceedings, Mpofu argued Downer should not have been permitted to depose to an affidavit in the special plea or the current application due to, among others, Zuma’s claims that he “leaked” information to the press and the criminal charges the former president had laid against him in connection with this. Further, he argued it was not in the interests of justice to subject “an old person” to the stress and strain of a trial, when he could potentially be acquitted without the need for the one.

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Thabani Masuku, SC, also for Zuma, pointed to allegations of political interference contained in an affidavit deposed to by former Asset Forfeiture Unit head Willie Hofmeyr.

These have since been dismissed by the courts, but Masuku criticised Koen for referring them to oral evidence, saying the former president “should not have to suffer the indignity of a cooked-up prosecution because of political

Breitenbach stuck to his guns, adamant that hearing an appeal at this stage would not be in the interests of justice, which “require that the trial in respect of the accused’s pleas of not guilty now commence”.

Judgment is expected this month.


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