Former president Jacob Zuma will go down in history in many ways, one for being the most persistent litigant ever known.

His private prosecution of senior advocate Billy Downer and journalist Karyn Maughan was an attempt to harass Downer and stop him from performing his duties, and was the “latest in a 19-year series of legal manoeuvres, the Stalingrad strategy, all of which have been found to be baseless,” Downer’s advocate Geoff Budlender submitted in the Pietermaritzburg high court on Monday.

Downer, who is the lead prosecutor in Zuma’s arms deal-related corruption and fraud case, has made an application for the summons in the private prosecution to be set aside.

He also wants judges Gregory Kruger, Jacqui Henriques and Thokozile Masipa, sitting as a full bench in the Pietermaritzburg high court, to interdict Zuma from taking any similar criminal action against him.

Zuma was present in court despite the EFF’s national shutdown campaign.

Maughan has launched a similar application, which is also being heard by the three judges on Monday.

Zuma’s legal team will have their say on Wednesday.

They were issued with a summons in September last year.

Downer is alleged to be an “accessory after the fact” in a contravention of the NPA Act relating to the alleged “leak” of a document containing Zuma’s confidential medical information to Maughan.

It is common cause that the document was not given to Maughan by Downer but by another advocate on the team, Andrew Breitenbach.

The document was also handed in to then trial judge Piet Koen by both Zuma’s attorney and the NPA in support of an application by Zuma for a postponement of the trial.

Koen has already ruled there was nothing confidential in the document and confidentiality was never claimed. However, it is the basis for the private prosecution.

Budlender repeatedly submitted on Monday the private prosecution was an abuse of process and was initiated with the ulterior purpose to delay Zuma’s trial or “prevent it from happening altogether” and would be a “springboard for further delays”.

He said Zuma had already said in his papers he was going to use the private prosecution to have Downer removed from the trial and “no-one can say we haven’t been warned”.

Budlender said Downer had not committed any offence, and neither had Breitenbach.

“The extraordinary assertion is that Downer had committed an offence because he had been informed of the arrangement between Breitenbach and Maughan so he thus associated himself with the crime.

“There is no such offence in our law. It does not exist,” he said.

Budlender said Zuma had never distanced himself from the words of his then counsel, now deceased Kemp J Kemp, in 2007, when he had pronounced Zuma was adopting the “Stalingrad” strategy.

He called on Zuma’s defence team to apologise for and withdraw a statement in their heads of argument.

It reads: “There is ample evidence that his [Downer’s] prosecutorial crusade is motivated by personal interests. It is inexplicable how a so-called senior and experienced prosecutor is unable to see the injustice. He is blinded by the false accolades he receives from his friends and enemies of Mr Zuma.”

Budlender said there was no evidence to justify such an allegation “which is defamatory, gratuitous, offensive, insulting and injurious”.

“It is sucked out of someone’s thumb. We invite Mr Zuma’s counsel to withdraw the statement and apologise for it. It is serious and an inexplicable burst of poison which is unjustified.”

Budlender said the case was important, not only for Downer.

“If this conduct is upheld, it will be an invitation for other accused to do the same. We will have case after case where those who are well-resourced will institute private prosecutions against their prosecutors on trumped-up charges.

“This court needs to say this is unlawful abuse. The courts have a duty to prevent abuse of process, to protect public confidence in the courts. This runs a mockery of the courts.”

The case continues. 

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