He said the state opposed the application for the reasons [Chili refused Zuma's application for Downer's recusal] and the application for leave to appeal and he was ready to argue both on Thursday.
Mpofu said Downer was trying to “snatch at a bargain” based on a “misunderstanding” of the purpose of Thursday’s hearing.
He said the issue of the reasons still had to be argued and determined before the issue of the question of leave to appeal.
He indicated Zuma’s legal team might be happy with the reasons and decide not to appeal.
Until this happened the trial date could not be confirmed.
“All these issues will be debated in good time. When that time comes. Neither party came here under the impression that the appropriate time is now.”
Mpofu also argued there were “exceptional circumstances” which warranted Chili giving his reasons now.
This was because the question of the recusal of Downer was inextricably linked with the trial.
“What would be the logic of running an expensive trial when there is a 50% chance that Downer is not the right person to run the case. It’s illogical. Nobody knows what the outcome of the appeal might be.
“We are not asking for a favour. We have a right to go to the next court and then the next one.
“I cannot understand why Zuma must be denied that right and he cannot exercise that right unless he has the [judge’s] reasons.”
Chili stood the matter down for about two hours. When he returned, he said he agreed there were exceptional circumstances and he would provide his reasons on September 11.
After that, it is likely that Zuma’s legal team will ask for a further adjournment to consider whether to apply for leave to appeal, but given the history of the matter that seems an inevitability.
Then, as Mpofu said, he will have the right to appeal “to the next court and the next one”.
TimesLIVE
Zuma to get answers why prosecutor Billy Downer was allowed to stay
Former president Jacob Zuma has succeeded in convincing the judge presiding over his arms deal corruption and fraud trial to give him reasons why he refused to grant his application for the removal of lead prosecutor Billy Downer.
When Pietermaritzburg high court judge Nkosinathi Chili ruled in March this year Zuma had not made a case for Downer’s removal on allegations he would not get a fair trial, he said he would only furnish his reasons for this in his judgment at the end of the trial.
He did, however, say Zuma had raised the same issues in the application as in a previous one when he had argued, in terms of his not guilty plea and in terms of the Criminal Procedure Act, that Downer had no “title” to prosecute him.
Chili alluded to the fact that in that matter Zuma’s appeals had not been successful.
Advocate Dali Mpofu, for Zuma, argued this was not good enough and was stifling Zuma’s chance to appeal.
Zuma, dressed in a green suit in the green colours of his new MK Party, made a surprise appearance on Thursday, having previously been excused from attending what was to be a pretrial conference to ensure everything was in order for the trial to begin in April next year.
Mpofu said this was because Zuma “felt very strongly” before the trial dates could be confirmed, his applications for the reasons from Chili, and what was likely to be an application for leave to appeal Chili’s ruling, had to be adjudicated first.
Downer, after giving a detailed history of the never-ending saga mainly caused by what courts have deemed to be Zuma’s “Stalingrad” campaign, asked that the trial dates be confirmed.
“We want the trial to start,” he said.
He said the state opposed the application for the reasons [Chili refused Zuma's application for Downer's recusal] and the application for leave to appeal and he was ready to argue both on Thursday.
Mpofu said Downer was trying to “snatch at a bargain” based on a “misunderstanding” of the purpose of Thursday’s hearing.
He said the issue of the reasons still had to be argued and determined before the issue of the question of leave to appeal.
He indicated Zuma’s legal team might be happy with the reasons and decide not to appeal.
Until this happened the trial date could not be confirmed.
“All these issues will be debated in good time. When that time comes. Neither party came here under the impression that the appropriate time is now.”
Mpofu also argued there were “exceptional circumstances” which warranted Chili giving his reasons now.
This was because the question of the recusal of Downer was inextricably linked with the trial.
“What would be the logic of running an expensive trial when there is a 50% chance that Downer is not the right person to run the case. It’s illogical. Nobody knows what the outcome of the appeal might be.
“We are not asking for a favour. We have a right to go to the next court and then the next one.
“I cannot understand why Zuma must be denied that right and he cannot exercise that right unless he has the [judge’s] reasons.”
Chili stood the matter down for about two hours. When he returned, he said he agreed there were exceptional circumstances and he would provide his reasons on September 11.
After that, it is likely that Zuma’s legal team will ask for a further adjournment to consider whether to apply for leave to appeal, but given the history of the matter that seems an inevitability.
Then, as Mpofu said, he will have the right to appeal “to the next court and the next one”.
TimesLIVE