Former president Jacob Zuma was yet again “playing for time” in launching another baseless application for the removal of Adv Billy Downer as the lead prosecutor in his arms deal-related corruption and fraud trial.

Downer, in his affidavit filed on Friday in response to Zuma’s latest application to remove him, has now called on the court to invoke provisions of the NPA Act which allows a court to “investigate any unreasonable delay” in criminal proceedings and issue an order to eliminate the delay and any prejudice arising from it.

Downer says given the 20-year history of Zuma's “Stalingrad tactics” to avoid having his day in court, it is time for the court to put its foot down.

“We seek the following order, that if he is unsuccessful in this application that the criminal trial shall proceed and shall not be suspended by any applications for leave to appeal.

“This court is empowered to make such an order,” he said.

The latest salvo fired against Downer by Zuma comes after he summonsed him and journalist Karyn Maughan to court in a private prosecution alleging Downer contravened sections of the NPA Act by “leaking” a document containing his personal medical information to Maughan.

Pietermaritzburg high court judge Piet Koen (who has now recused himself as the trial judge) has already ruled — in a previous unsuccessful application in which Zuma sought to challenge Downer’s “title to prosecute” on allegations he is biased — that there is no basis to this complaint.

But in April this year, when the trial was due to begin before judge Koen’s replacement, judge Nkosinathi Chili, Zuma lawyers launched a fresh application, saying essentially Zuma could not be prosecuted by someone he is prosecuting.

Both Downer and Maughan have launched court challenges to the private prosecution and judgment is pending.

Downer, in his answering affidavit in the latest bid to remove him, says he has been the lead prosecutor in “successive prosecutions” — first of (Zuma’s former financial adviser) Schabir Shaik and then Zuma in the arms deal-related matter.

He said Zuma’s prosecution has been dragging on for the better part of 20 years. The delay, in large part, due to Zuma’s “Stalingrad tactic” — a phrase first coined by Zuma’s then senior counsel, the late Adv Kemp J Kemp in 2007.

Downer says this was “to avoid at all costs having his day in court and face the charges against him”. He said this tactic involved launching and prosecuting “endless challenges of various kinds”.

“They have varied widely over the years but were all baseless and ultimately failed. They served his purposes, however, because he pursued them as far as he could, to play for time.

“Whenever a challenge finally petered out, he would initiate a fresh challenge for another round of litigation to avoid ever having to stand trial.”

Downer said Zuma had frequently attacked him in an attempt to discredit and disqualify him in applications which had consistently been dismissed.

Despite this, he had now “repackaged and repeated the same complaints” in both the private prosecution and the latest application for his removal”.

“It is yet another play in his Stalingrad tactic and he should not be allowed yet again to drag on the trial indefinitely.”

Downer has chronicled all of Zuma’s court challenges, dating back to August 2003 — all of which, he says, ultimately failed but only after he pursued them to the “bitter end”.

“His ultimate goal has been never to face his day in court.”

The latest one, was launched on the day the trial had been set down to start, April 17 — and resulted in another postponement of the trial, this time indefinitely, because no fresh date has been set.

Downer said baseless attacks on prosecutors involved in grand corruption cases should be resisted.

“They are prevalent worldwide where individuals use their power and connections to undermine the integrity of the prosecution, attempting to bend the legal process to their advantage.

“Allowing Mr Zuma to choose his own prosecutor through relentless attacks not only compromises the impartiality of the prosecution but erodes public confidence in the criminal justice system.”

Last year Zuma, in terms of a special plea, tried to oust Downer claiming he was biased and vindictive against him.

However, this — and 13 other grounds he raised — were dismissed by then presiding judge Piet Koen.

Koen recused himself from the trial earlier this year when Zuma’s lawyers said they were intent on bringing another application to get rid of Downer, based on the private prosecution.

Koen said in his ruling on the special plea he had expressed strong views on the factual events at the heart of the private prosecution, essentially saying there was no merit to it.

In his judgment, judge Koen dealt specifically with Zuma’s “leaking” complaint.

He said the letter from Zuma’s doctor had been submitted to court as part of an application for a postponement and intended to be made public; Zuma and his lawyers had not asked for the report to be kept confidential; and in any event it did not contain anything materially confidential, that it was vague and did not mention any specific medical condition or illness.

Judge Koen further said that its disclosure “at best amounted to an irregularity”.

In recusing himself, judge Koen said the views he had expressed would reasonably be perceived to influence findings he would be required to make as to whether Downer should be removed.

Zuma will file a reply to Downer’s affidavit in mid-June and both parties will file heads of argument before the matter is heard on August 15 and 16. Zuma and French arms company Thales are facing charges of racketeering, corruption, money laundering and fraud charges relating to the arms deal.

Zuma is accused of receiving about R4m via his former financial adviser Schabir Shaik to assist Thales to secure defence contracts.

Shaik was convicted in 2005 but was released on medical parole in 2009.

Both have pleaded not guilty.

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