{"id":55560,"date":"2023-10-26T16:14:03","date_gmt":"2023-10-26T16:14:03","guid":{"rendered":"https:\/\/www.africa-press.net\/south-africa\/all-news\/judgment-reserved-in-zumas-latest-attempt-to-remove-billy-downer"},"modified":"2023-10-26T16:50:16","modified_gmt":"2023-10-26T16:50:16","slug":"judgment-reserved-in-zumas-latest-attempt-to-remove-billy-downer","status":"publish","type":"post","link":"https:\/\/www.africa-press.net\/south-africa\/all-news\/judgment-reserved-in-zumas-latest-attempt-to-remove-billy-downer","title":{"rendered":"Judgment reserved in Zuma’s latest attempt to remove Billy Downer"},"content":{"rendered":"

Africa-Press – South-Africa. <\/strong><\/span>If Billy Downer was to be removed as lead prosecutor in former president Jacob Zuma\u2019s arms-deal related trial, it would be the beginning of a \u201cStalingrad festival\u201d with complaints against every replacement prosecutor, said advocate Geoff Budlender on Thursday.<\/p>\n

He was arguing against a bid by Zuma, before trial judge Nkosinathi Chili, for the recusal or removal of Downer, whom Zuma accuses of prosecutorial bias, which means he won\u2019t get a fair trial.<\/p>\n

\u201cThe truth is that Mr Zuma\u2019s attack is not only on Mr Downer \u2014 and he has said so,\u201d Budlender said. \u201cWe know what\u2019s coming next. He will set his sights on the next one in line. It\u2019s clear he wants to frustrate the prosecution.\u201d<\/p>\n

But advocate Dali Mpofu, for Zuma, said this was a misrepresentation of what his client had said. He had only said he doubted he would get a fair trial under any member of the present prosecution team \u201cnot all thousands of prosecutors\u201d.<\/p>\n

This is the second attempt to remove Downer. The first, in a special plea, was rejected by former trial judge Piet Koen.Since then, Zuma has laid criminal charges against Downer and then initiated a private prosecution against him and journalist Karyn Maughan involving an alleged leak of a document, penned by his doctor when he was in hospital in Pretoria (while incarcerated for contempt of court), alleging they contravened the NPA Act which carries a penalty of 15 years in prison or a fine of R100,000 \u2014 or both.<\/p>\n

The document was submitted to court by both the state and Zuma\u2019s lawyer. But Zuma maintains that it was confidential and contained his personal medical records.<\/p>\n

No fewer than three courts and eight judges, including the Supreme Court of Appeal, have ruled that the private prosecution is baseless and was instituted by Zuma for ulterior purpose to delay and obstruct his trial.<\/p>\n

A full bench (three judges) of the KwaZulu-Natal high court set aside the summons. The court refused to grant Zuma leave to appeal but he has petitioned the SCA.<\/p>\n

With the appeal pending, ordinarily a judgment would be suspended, but Downer and Maughan then secured an order from the same three judges which effectively put their ruling, halting the private prosecution, into operation.<\/p>\n

Zuma challenged this in the SCA and received a battering.<\/p>\n

It emerged at Tuesday’s hearing that Zuma has now appealed that ruling to the Constitutional Court. Because of this, his advocate Dali Mpofu argued, Downer was still under threat of being prosecuted by Zuma.<\/p>\n

\u201cWe don\u2019t have to show that he will be convicted … but can he [Downer] be seen to fair and unbiased when he is appearing on one day, in this court, as prosecutor and then the next day, in the same court and before the same judge, as an accused,\u201d he said.<\/p>\n

Mpofu dismissed suggestions that the private prosecution, the appeals and the present application were just part of the \u201cStalingrad strategy or whatever\u201d \u2014 even though the SCA, in its judgment, said this was clear.<\/p>\n

To remove Downer, he said, he only had to show that Downer\u2019s conduct did not match up to the standards expected of a prosecutor.<\/p>\n

He suggested that the 20-year delay in getting the matter to trial had nothing to do with \u201cStalingrad\u201d.<\/p>\n

In fact, he said, had the National Prosecuting Authority (NPA) and Downer \u201cdone the right thing\u201d and replaced Downer \u201cthe trial would have finished by now\u201d.<\/p>\n

\u201cOne year has been wasted because of the intransigence of the other side in the face of their clear ethical duties,\u201d Mpofu said.<\/p>\n

But Budlender said an accused had no right to dictate to the NPA who would prosecute him or her. \u201cThe main trigger of this application is the private prosecution, but court after court have labelled that as an abuse \u2014 a hopeless case. And it is not open to him to dispute this,\u201d he said.<\/p>\n

Budlender said judge Chili could not ignore the previous rulings \u2014 and that he was bound by them. He also said the SCA ruling, while being appealed, was still valid until another court set it aside.<\/p>\n

\u201cZuma wants to make a fool of the law and the courts. If there ever was a case of clean hands\/dirty hands, it is this.\u201d<\/p>\n

While Mpofu accused Downer of telling \u201cblue lies\u201d when he claimed that the medical report had already been handed in to court, Budlender said \u201cthis was not blue, white or red lies\u201d.<\/p>\n

Downer had done nothing wrong. He had not given the document to Maughan (a colleague did) and it had already been sent, albeit unsigned, to the judge, making it a public document.<\/p>\n

He said a common theme of Zuma\u2019s papers was that Downer was not indispensable, \u201cso why not just replace him?\u201d<\/p>\n

\u201cThe question is not whether he is indispensable but whether an accused person can abuse the process of court and then use that to get the dismissal of the prosecutor.<\/p>\n

\u201cApart from the principle, there are other practical reasons why the NPA wished to keep Downer on the team even though he has retired. It’s because of his vast knowledge of this extraordinarily complex case. The case would be severely prejudiced should he be removed.<\/p>\n

\u201cThere is not a drop of evidence that he [Downer] acted outside the bounds of prosecutorial fairness. He has conducted his duties with skill, professionally, fairly, vigorously, zealously, with persistence and with dignity.<\/p>\n

\u201cThat is what is expected of a prosecutor,\u201d he said.<\/p>\n

Referring to submissions by Mpofu that proof of Downer\u2019s bias was that he had \u201cburst into tears\u201d when similar charges were withdrawn against Zuma (and co-accused French arms company Thales) in 2009 by then acting national director of public prosecutions Mokotedi Mpshe, Budlender said the story of the tears was true.<\/p>\n

\u201cIt was because his colleagues had betrayed him. He refused to be part of it and stood up against what was going on. His insistence that Mr Zuma be prosecuted was based on an assessment of the evidence. Nothing he has done will result in Mr Zuma not getting a fair trial.\u201d<\/p>\n

Budlender said the removal\/recusal application was \u201carguably in itself an abuse\u201d and should be dismissed.<\/p>\n

Mpofu, in reply, said Downer should concede that he had done wrong, not only in leaking the document to Maughan, but also in disclosing information regarding the case against Zuma to (then) Mail & Guardian journalist Sam Sole in 2008, which forms the basis of another charge against Downer in the private prosecution.<\/p>\n

Downer claims he gave Sole information only on laws surrounding mutual legal international co-operation.<\/p>\n

But Mpofu said that in itself was a breach of the NPA Act, which decreed that a prosecutor could not give out any information at all. \u201cThe legislator deliberately put a hefty sentence on contraventions, to preserve the integrity of the justice system. It is serious. Even some murderers get less than 15 years,\u201d he said.<\/p>\n

He insisted that if justice demanded it, \u201canyone can be replaced\u201d.<\/p>\n

\u201cIf Downer was hit by the proverbial bus \u2014 would that be the end of the case? Well, we would be happy, but the NPA will find another prosecutor.<\/p>\n

\u201cWe asked the NPA to remove him. They said no. We appealed to his conscience. He said no. We are saying please find another prosecutor but don\u2019t be blind to the (fact that) the NPA is a crime scene,\u201d Mpofu said, referring to the fact that the NDPP had supported Downer, and was paying for his defence in the private prosecution.<\/p>\n

Judge Chili reserved judgment but before he adjourned court, he addressed the \u201celephant in the room\u201d \u2014 that Downer and Maughan were due to appear before him in the private prosecution on November 1.<\/p>\n

The judge inquired whether some arrangement could be made to possibly have the matter removed from the roll.<\/p>\n

Downer, who attempted to make submissions on the issue, was shouted down by Mpofu who said \u201che is accused No 1 … we can\u2019t be listening to him\u201d.<\/p>\n

Budlender took over, saying it would be \u201csensible\u201d to remove it from the roll.<\/p>\n

However, Mpofu said he needed to take instructions from Zuma about whether he wanted to \u201cextend the olive branch\u201d.<\/p>\n

\u201cBut the point must not be forgotten that there are no special accused in this country … whether they are tall or short, black or white, rich or otherwise.\u201d<\/p>\n\r\n