Mpofu says 'leaks' to journalists will be raised at arms-deal trial

Lead prosecutor advocate Billy Downer will be called as a witness by former president Jacob Zuma in his arms-deal related trial, Zuma’s advocate Dali Mpofu says.

Mpofu on Thursday argued in the Pietermaritzburg high court that presiding judge Nkosinathi Chili should grant leave to appeal to allow Zuma to challenge in the Supreme Court of Appeal (SCA) his ruling dismissing an application that Downer be removed from the case.

Mpofu said Zuma had a “reasonable apprehension of bias” — an issue not canvassed by Chili when he handed down his reasons for the dismissal of the application in September last year.

While Mpofu conceded the private prosecution against Downer and journalist Karyn Maughan, for the alleged leak of a medical report, “was done” (after damning court rulings), he said the issue of the leak to Maughan and previous “leaks” to journalist Sam Sole would be raised at the criminal trial.

State advocate Andrew Breitenbach argued law precluded mid-trial appeals in criminal matters unless they were in the interests of justice or there were special circumstances, Mpofu said allowing an appeal was “clearly in the interest of justice”.

“It’s common sense, you cannot have a situation where the prosecutor or the judge must recuse themselves, but then you say run the trial and then at the end we will determine if they should have recused themselves. That is nonsense. You will have to run a long trial which might result in a nullity.

“It’s a waste of everyone’s time and money.”

Mpof said while he still had to take instructions, Zuma would possibly support a bid by his co-accused, French arms company Thales, for a permanent stay of prosecution, which it filed earlier on Thursday.

Thales' attorney Cameron Dunstan-Smith said in an affidavit it was impossible for Thales to receive a fair trial given that the two directors, Alain Thetard and Pierre Moynot, who were allegedly involved in matters relating to the charges, have died.

“The importance of them in the criminal trial cannot be overstated...” he said.

Judge Chili reserved judgment in the leave to appeal application.

Zuma and Thales are facing charges of corruption, racketeering and fraud. Thales is accused of paying bribes to Zuma through his former financial adviser Schabir Shaik.