Torrent of abuse at prosecutor ‘unlike anything seen before’

• An accused cannot choose prosecutor, says Downer’s counsel, but Zuma team calls it Stalingrad mumbo jumbo

Endless litigation by former president Jacob Zuma to delay or obstruct his trial related to the arms deal has become a public joke, advocate Geoff Budlender submitted on Thursday at the Supreme Court of Appeal.

He said Zuma is a vexatious litigant, and his bid to privately prosecute lead prosecutor Billy Downer — and another attempt to remove Downer as prosecutor, which will be heard next month — comes because he is “running out of road” after a series of failed court applications and appeals.

Zuma, who was in court, is intent on privately prosecuting Downer and journalist Karyn Maughan for what he alleges are contraventions of the National Prosecuting Authority Act, in that Downer leaked a document containing what he claimed was his personal medical information to the journalist.

Three KwaZulu-Natal judges set aside the summonses and interdicted Zuma from initiating any further private prosecutions against Downer and Maughan on the same charges.

The judges said the private prosecution was baseless, an abuse of court and had been instituted with ulterior motives.

However, Zuma noted an intention to apply for leave to appeal, which would have suspended the judgment, meaning the private prosecution could continue in the interim.

Downer and Maughan then successfully secured an order in terms of the Superior Courts Act to immediately enforce the fullbench ruling despite the appeal.

Zuma, in terms of the same act, has an automatic right to appeal against this order. And this is what was argued before the Supreme Court of Appeal on Thursday.

Budlender, for Downer, said the private prosecution is based on “trumped-up charges” which cannot succeed.

He described Zuma’s affidavit in the matter as an “extraordinary torrent of abuse and insult directed at Downer”.

“I have literally never seen anything like it in court papers. The focus was [on] why Mr Downer is a very bad person.”

Budlender said all of Zuma’s criticisms have been raised previously in his unsuccessful special plea (in which he sought to oust Downer).

They had been carefully analysed by (former arms deal trial) judge Piet Koen, who found every one to be unfounded, including the issue of the alleged “leak” of the document.

Zuma’s attempt to appeal against Koen’s ruling has been turned down by every court.

“He appears to hold the view that he is entitled to have a say in who prosecutes him.”

He said if the court did not dismiss Zuma’s appeal against the enforcement ruling, the abuse would continue.

“The timing of the private prosecution is significant. Mr Zuma’s application for a permanent stay was refused, his attempts to appeal against that were dismissed. His special plea was also dismissed.”

“The trial was about to begin. He had run out of road.

“When have we heard of a case where an accused gets to call for another prosecutor?”

Budlender also pointed out that although he may not be “indispensable”, Downer was the one who had built the case of 20 years and had the knowledge to prosecute replacing him with another prosecutor would itself lead to more delays.

He said it was uncontested that Downer himself never gave any documents to Maughan, yet he is being accused as accessory. He termed the entire affair a “public joke” and said no-one “seriously” expects any court to convict and sentence Downer to prison. This means Zuma’s prosecution is clearly an abuse.

Tembeka Ngcukaitobi, for Maughan, said Zuma is engaged in a “cynical abuse of the legal system”. The private prosecution of Maughan, he said, is an attempt to stop her reporting on his cases and is a “manipulation of the law”.

“This has implications beyond these two parties. It has implications for the rule of law and the authority of judges.”

However, Dali Mpofu, for Zuma, claimed the oft-reported “Stalingrad” strategy attributed to his client is just “mumbo jumbo” created by the media.

“They [Downer and Maughan] are guilty of Stalingrad. They should have their day in court [in the private prosecution],” he said, questioning why they had opposed the application.

“What if he was hit by the proverbial bus. Does that mean the prosecution [against Zuma] would suddenly disappear. That would be ridiculous.”

He said the KwaZulu-Natal judges had given a “half-baked judgment” and delivered a rushed decision.

Though the KZN judges had not granted leave to appeal against the main judgment, he said the prospects of success on appeal (on petition to the appeal court and the Constitutional Court) “were good” and those courts might find there was no abuse or ulterior purpose.

Judgment was reserved.