Former President Jacob Zuma at the Pietermaritzburg High Court. (Logan Ward/AFP)
The state government on Wednesday petitioned Judge Nkosinathi Chili to allow the trial in the arms dealing case to begin in April next year, even as it plans to apply for leave to appeal against the dismissal of former president Jacob Zuma's recent application to have Billy Downer removed as prosecutor in the case.
Chiles on Wednesday detailed his reasons for dismissing the motion in March, saying all of Downer's claims that he had violated Zuma's right to a fair trial were without merit.
Zuma's lawyers had argued that the appeal should be allowed, but he rejected their arguments and presented his own case. The court intended to give full reasons at the end of the trial, but the state government said that was the right thing to do and would prevent further delays in the case, which dates back to 2005.
Mr Justice Downer asked Mr Justice Chiles to set a date for hearing the application for leave to appeal later this year, but the judge said he could only hear the case from January next year.
Prosecutors said they are again asking the court to reserve the periods from April 14 to June 20 and from July 21 to September 19 for the trials, whatever the outcome of the scheduled cases.
“Whatever happens next in the appeals process, the April date must remain in place and the trial must begin, because it doesn't matter what date the judge decides the court will insert in January.”
Downer said it was clear that if the application for leave to appeal was refused, Zuma would appeal to a higher court “in line with what is being called Stalingrad”.
“This situation cannot be allowed to continue,” he added.
“We will prepare for trial, we will brief witnesses, the police will be there, the court will be there and for my learned friends, especially accused no. 2,” he said. [French arms maker Thales] It suggests that it will be available.”
Downer said Zuma's chief adviser, Dali Mpofu, had also confirmed his attendance.
“We must now be clear that we cannot simply move the trial forward to deal with a long series of appeals that will take years to get to the SCA. [supreme court of appeal] And the Constitutional Court,” Downer said.
Zuma's lawyer, Nqabaethu Buthelezi, countered that it would be unfair to the court to book a date when Chiles' sentence is being appealed and that the process needs to be played out to completion.
“As long as there are avenues of appeal, such as petitioning the SCA, it is not possible for us here to accept without any compunction and conscience that the trial will commence from April next year. It is not possible.”
Chiles said he would consult with the KwaZulu-Natal chief judge on the date.
The judge cited a Court of Appeal ruling that found attempted private criminal prosecutions against the veteran prosecutor were hopeless and a gross abuse of process in rejecting Zuma's second attempt to oust Downer in the past three years.
The alleged charge was one of four pillars used by President Zuma in his application to remove Downer from office, and Mr Chiles said it, like the other three, did not hold up.
Zuma's legal team had argued that Downer was unfit to stand trial because he was facing charges from his own side of the court for breaching the National Prosecuting Authority (NPA) Act by leaking his confidential medical records to the media.
But Mr Chiles said the High Court, in a ruling by first instance judge Piet Kuhn, had found that this had not happened – a conclusion reached by an en banc panel and confirmed on appeal.
“It is important to note that all attempts to overturn Judge Cohen's ruling have failed. The findings made in the removal and civil suit rulings are binding on this court,” he stressed.
Zuma's further argument that Downer would be making a mockery of the justice system if he appeared in court one day as a defendant and the next to prosecute his accusers was therefore to be rejected.
Chiles said that if the charges against Downer had been sustained, he would not have hesitated to issue an order for his removal.
“But that is not the status quo. As things stand, there are no civilian prosecutions. All attempts by Mr Zuma to prosecute Mr Downer have failed.”
“I would add that as part of the arguments before the court in this case, the Supreme Court of Appeal has already made findings of fact that Mr Zuma's attempt to prosecute Mr Downer amounted to an abuse of process.”
He quoted the SCA ruling at some length.
“The facts show that the private prosecution against Mr Downer is an abuse of the process of court for several reasons. Firstly, as the High Court has found, it was commenced as a further step in Mr Zuma's continuing attempts to obstruct and delay his own criminal trial.”
“This is a hidden objective and therefore the initiation of a private prosecution is unlawful. Secondly, it was initiated to remove the prosecutor in Mr Zuma's trial, Mr Downer, which is also a hidden objective making the private prosecution unlawful and thirdly, the planned private prosecution is clearly a hopeless case. It is clearly unsustainable.”
Zuma had sought to bolster his application by reviving a charge that Downer leaked details of the prosecution to investigative journalist Sam Sole without authorisation in 2008. This too was found to be unfounded, according to Chiles.
The judge also cited NPA lawyer Geoff Budlender's argument that, through multiple applications, President Zuma had sought to appoint a prosecutor of his own choosing to handle the trial into allegations of fraud, corruption and money laundering relating to South Africa's arms acquisition in the 1990s.
“He went on to say that if such procedures were allowed, they would become a standard tool for well-funded defendants to abuse the process. He further expressed the view that our laws do not permit such procedures,” Chiles said.
“There is merit to that argument.”
He noted that Downer had argued that the complexity of the case and the financial harm his removal would cause to the state were among the reasons he should be kept in place.
Chiles noted that Zuma did not address these allegations in his written reply, other than to say Downer was not essential.
Zuma further acknowledged that many of the complaints against Downer had been dealt with in court, but said he had brought them up again to show that the atmosphere surrounding the trial had become so bad that the case could not be prosecuted.
The court disagreed.
“Having considered all of Mr Zuma's grounds, both individually and together, I am unable to conclude that Mr Zuma's right to a fair trial would be violated by Mr Downer continuing to act as prosecutor in this case,” Chiles said.
