Judge Chili outlines reasons for refusing Downer’s removal in Zuma’s application

The judge presiding over former president Jacob Zuma’s arms-deal related corruption trial said when considering the fresh application for the removal of lead prosecutor Billy Downer, he was bound by previous court decisions which had found Zuma was abusing court processes and engaged in “Stalingrad” tactics to avoid trial.

Pietermaritzburg high court judge Nkosinathi Chili on Wednesday gave reasons for his March ruling that Downer could remain on the case.

At the time, he said he would give his reasons at the end of the criminal trial, but Zuma’s legal team argued this was stifling his right to appeal the March ruling.

The judge agreed to give reasons.

In spite of advocate Dali Mpofu submitting previously an appeal was not a foregone conclusion and “we might agree with the reasons”, the situation has changed.

Downer said dates had been agreed between the parties for the hearing of Zuma’s application for leave to appeal in October or November.

But Chili said he was not available until January.

He said the dates for trial, beginning on April 14 next year, would remain reserved on Downer’s urging.

Downer said: “The trial must start whatever the status of any appeal process. This (Stalingrad) cannot be allowed to continue. We cannot keep moving the trial on because of appeals which will take years.”

Mpofu and Zuma were not in court on Wednesday.

Advocate Nqabayethu Buthelezi, on their behalf, said the reservation of trial dates in April next year would result in an “absurdity” when the appeal issues would not have been resolved.

“They glibly talk of Stalingrad. We take exception to that because we are exercising our rights. Whether leave to appeal is granted or denied the appeal avenues, to the Supreme Court of Appeal (SCA) and further, exist,” he said, submitting the court should not be “cornered” into reserving the dates further.

The leave to appeal application will be heard on February 6 2025, and Chili said the dates for the hearing of evidence would remain reserved.

Earlier, when setting out his reasons for the March order, Chili said Zuma had relied on four pillars in his bid to oust Downer as lead prosecutor.

He said every single one had previously been dealt with in the courts.

Zuma, he said, had anchored his removal request on his private prosecution of Downer for the alleged leak of his private medical information to journalist Karyn Maughan.

He had argued it was impermissible for Downer to prosecute him while he [Zuma] was prosecuting Downer at the same time.

But Chili said this was not the case.

If it was he would have no hesitation in finding in Zuma’s favour.

“As things stand there is no private prosecution. All his attempts have been unsuccessful.”

Chili referred to a judgment by the SCA on the issue, which found the attempt was an abuse of process in Zuma’s sustained attempt to obstruct and delay his criminal trial.

This, the SCA had found, was ulterior purpose and the private prosecution was a “hopeless case”.

Regarding the leak of the so-called confidential medical records, Chili said this too had been canvassed previously before judge Piet Koen (the former trial judge), who found Downer had made “no such disclosure to Maughan”.

With regards to Zuma’s contention the trial could proceed if the National Prosecuting Authority (NPA) replaced Downer, and that Downer was not indispensable, Chili said that was not supported by the evidence, referring to an affidavit by Zuma in which he said it was doubtful he would get a fair trial from any member of the prosecutions team.

“But that is not an issue for now,” the judge said.

He said there was merit to the argument by the NPA, which said allowing an accused person to elect the prosecutor of their choice would become a standard tool in the toolbox of well-resourced people to abuse the process.

“Mr Downer advanced many practical reasons why he should remain lead prosecutor. It is worth mentioning Mr Zuma did not deal with any of the reasons in reply.”

Chili said he was bound by previous court rulings on the issue and having considered all the grounds advanced by Zuma, individually and cumulatively, he could not find Zuma’s rights to a fair trial would be violated by Downer’s continued prosecution of him.

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