WRAP | Zuma will only 'get justice' when 'Mr Downer is removed', Mpofu argues

Downer says the state has asked that the private prosecution case should be struck from the roll. Mpofu objects and shouts that Downer cannot address the court because he is an accused. Budlender then gets up and says the case should be struck from the roll and rejects Mpofu's suggestion that there is a racial dimension to Downer and this writer not being expected to appear in court. 

- Karyn Maughan

Mpofu again conflates Zuma's private prosecution with a prosecution pursued by the state.

- Karyn Maughan

Judge Nkosinathi Chili reserves judgment. He says he wants to deal with "another elephant in the room": 

Zuma's invalidated private prosecution against Downer and this writer. He asks whether this case should not be removed from the roll, given that there has been so much litigation (and four court rulings that the private prosecution was an abuse and must be set aside).

Mpofu argues that Zuma has been expected to appear in court during his trial by the state and both Downer and this writer should be expected to appear in court next week - because Zuma is trying to appeal the invalidation of the private prosecution. 

- Karyn Maughan

COMMENT: Mpofu continues to make arguments and assert statements that have been disproved and rejected in four rulings. He does not appear to accept the court's findings that Zuma's confidential medical records were not disclosed in the sharing of court papers.

- Karyn Maughan

Again, Mpofu argues that the NPA Act states that any prosecutor who discloses information that comes to their attention during the course of their duties - without the permission of the NDPP - can be sentenced to 15 years behind bars. (As yet, no one has ever been sentenced under this provision). He has made this argument before, and it has been rejected in multiple rulings.

- Karyn Maughan

Mpofu tells Chili that we are not in court to determine whether Downer will be convicted or not. Chili tells him to "wrap up".

- Karyn Maughan

COMMENT: Mpofu triumphantly reads out part of Koen's ruling on Zuma's special plea bid to force Downer's removal, where he says that "at best" Zuma's accusations that Downer was involved in the untoward provision of court papers would amount to "an irregularity", Zuma sought to elevate it to the status of a criminal offence and Mpofu now argues that "an irregularity" is enough to force Downer's removal.

- Karyn Maughan

Mpofu argues that the state's contentions about the pivotal role that Downer plays in the Zuma prosecution are just "an ego trip" about his alleged indispensability.

- Karyn Maughan

Comment: Mpofu now argues that the effect of Budlender's argument about the crucial role in the Zuma prosecution is that he could stab the former president - or open fire with a machine gun outside the court - and the NPA would still keep him in the case. This is a somewhat bizarre argument to make - and ignores the fact that the accusations levelled against Downer by Zuma have been roundly rejected as baseless by multiple courts.

- Karyn Maughan

Mpofu continues to argue - as he did in Zuma's failed bid to defend his private prosecution - that it is a criminal offence for a prosecutor to disclose any information to anyone. He says it does not matter that Downer did not disclose any confidential information to journalist Sam Sole and then proceeds to read a transcript of Downer's unlawfully recorded conversation with Sole - which Zuma also cited in his now invalidated bid to privately prosecute Downer and this writer.

- Karyn Maughan

'No one can prosecute me': Zuma's desperate last bid to avoid trial for Arms Deal corruption

'In an unprecedented special plea, former president Jacob Zuma insists the National Prosecuting Authority (NPA) does not have the right to lead evidence of his alleged corruption against him, and demanded to be acquitted. Zuma is not only seeking the removal of advocate Billy Downer as the lead prosecutor against him because of his alleged lack of impartiality and independence, he also wants the NPA to be completely blocked from pursuing its 16-year-old case against him." 

Mpofu appears to be denying that Zuma made it clear that he would seek the removal of any NPA prosecutor who replaced Downer.

He says Zuma would only seek the removal of any of the prosecutors currently on the NPA's Zuma team, who he suggests have been tainted.

- Karyn Maughan

Mpofu says that Judge Koen "rejected" the state's previous accusations that Zuma had embarked on Stalingrad litigation - and then reads an excerpt from Koen's judgment on this issue, when he stated that there was not sufficient evidence before him to make such a finding.

Subsequently, a full bench and the SCA have found that Zuma's private prosecution of Downer was part of his Stalingrad litigation campaign.

- Karyn Maughan

Mpofu says the "whole Stalingrad theory" that Zuma pursued his private prosecution against Downer and this writer as part of a litigation strategy aimed at avoiding his day in court is "just smoke and mirrors".

- Karyn Maughan

Mpofu again argues that - because Zuma received legal advice that led him to pursue a private prosecution against Downer and this writer - it cannot be said that he acted in bad faith.

"Well then, it should be blamed on the lawyers, not on him", he adds.

- Karyn Maughan

Mpofu argues that Chili is not bound by the findings made in relation to the abusive nature of Zuma's private prosecution.

What if Zuma's appeal against the full bench's invalidation of his private prosecution is successful? he asks, before suggesting that this could undermine Downer's continued prosecution of Zuma.

- Karyn Maughan

Mpofu says he wants to start by saying that Budlender has failed to address whether Zuma will be given a fair hearing if Downer prosecutes him or not. The fact that Downer is facing charges from Zuma is enough to justify his removal, he argues.

- Karyn Maughan

Advocate Dali Mpofu will reply to Budlender's arguments after the break, which is scheduled to end at 14:30.

- Karyn Maughan

Budlender points out that Zuma once "vigorously" demanded his day in court. "He hasn't done that so vigorously lately," he adds.

- Karyn Maughan

Budlender now points to a court ruling that establishes that prosecutors are not expected to show the same impartiality as judges are - but can be biased towards wanting to prove the guilt of an accused.

There is "not a drop of evidence" to show that Downer has acted outside the scope of his duties and obligations as a prosecutor, he says.

Referring to Downer's tears - after he found out that the Spy Tapes recordings had captured his bosses discussing the timing when Zuma would be charged - Budlender says Downer was dismayed at the untoward conduct of his colleagues.

He points out that Koen found that Downer had "stood up" against this conduct. It is ironic that Zuma's lawyers are now trying to condemn him over this, Budlender adds.

- Karyn Maughan

Budlender says that Zuma hasn't pointed to any evidence that he will not receive a fair trial if Downer prosecutes him.

- Karyn Maughan

Referring to the submission by Zuma's lawyers that "the NPA is criminal", Budlender argues that Zuma's latest Downer removal bid isn't just about him - it is the potential beginning of a sustained attack on the state itself.

- Karyn Maughan

Budlender takes the court through Downer's important role in managing the state's case against Zuma and says that Zuma has failed to address this evidence - and has just argued that Downer is not indispensable.

He also points out that Zuma has himself said that, should Downer be removed, he will attack the right of other prosecutors to prosecute him. He says Mpofu may "huff and puff" over this, but Zuma has stated as such in his court papers. Removing Downer will be the beginning of a "Stalingrad festival", Budlender argues.

- Karyn Maughan

Budlender says the key question is this case is not whether Downer is "indispensable" to the state's case against Zuma, it is whether an accused can abuse the court system and then use that abuse to force the removal of the prosecutor?

"We submit that our law will not tolerate that abuse", he says.

Budlender warns that, should Zuma be successful in his latest bid to force Downer's removal, it will open the floodgates for other accused to use abusive private prosecutions to remove their prosecutors.

- Karyn Maughan

Budlender says it really "can't be conceivably in the interests of justice" for Zuma to be allowed to re-argue matters that have already been conclusively dealt with the courts "over and over and over again".

- Karyn Maughan

Budlender is taking Chili to all the rulings that deal with and radically undermine Zuma's accusations against Downer.

He says he knows this is "tedious", but he has to do it in light of Mpofu's arguments that this court should address the former president's claims like they have not been dealt with before.

- Karyn Maughan

Budlender refers to the SCA finding in regard to the doctor's letter:

"Koen J found that Mr Zuma's doctor's note was not truly intended to be confidential; it did not contain any confidential information;9 and, its disclosure did not constitute an actionable violation of his rights.

"It is so that in the course of his judgment, Koen J did proceed to consider further hypotheticals, presumably for the benefit of an appeal court and on the assumption that it may take a contrary view to him on his primary finding.

"In the event, his further 'ruminations', as he described it, proved unnecessary, because leave to appeal was refused, which means that his primary finding that the note did not contain any confidential information stands."

- Karyn Maughan

Koen found as follows:

"The letter of Brigadier General (Dr) Mdutywa is vague and general in its terms and does not disclose any particularity, which could be said to amount to a violation of Mr Zuma’s rights his rights to privacy.

"Specifically, it does not mention the medical condition Mr Zuma suffers from. Mr Mpofu however submitted that it was unacceptable, in the spirit of uBuntu, for Mr Zuma's relatives to hear from press reports, and not from Mr Zuma personally, that he was suffering from a life threatening illness.

"The letter presumably would not record a diagnosis which the doctors had not shared with Mr Zuma previously, and which he could have shared with his family even before the letter was issued to the Department of Correctional Services.

"The doctors would not convey information regarding Mr Zuma's medical condition to the Department of Correctional Services without his authority, and, at least them having advised him of the details of his state of health, which were then recorded in the letter."

- Karyn Maughan

Budlender now points out that Koen found that the letter from Zuma's doctor did not contain any confidential medical information - and, in any event, "confidentiality had been waived" by Zuma's lawyers.

- Karyn Maughan

Budlender says it is "absolutely untrue" for Mpofu to claim that Downer had lied about when the disputed documents had been filed - as they were considered to have been filed in court after the NPA emailed them to Judge Koen.

- Karyn Maughan

Budlender says that the full bench has already found that the private prosecution that Zuma attempted to pursue against Downer and this writer was without merit.

In addition, the SCA found that his case was "hopeless".

Eight judges had found that the private prosecution was an abuse instituted for an ulterior purpose. Yet, he says, Zuma is trying to use this abuse to force Downer's removal.

This would "turn the law on its head".

- Karyn Maughan

Budlender argues that Zuma's attempt to appeal the enforcement of his private prosecution invalidation is a "nullity".

- Karyn Maughan

Budlender stresses that the SCA has made it clear that, while the orders delivered in a case are suspended by an appeal, the findings made by a court stand - until they are set aside.

As the SCA stated: "The finding stands until set aside by a court of competent jurisdiction."

This means that the findings about the abusive nature of Zuma's private prosecution stand, he adds.

- Karyn Maughan

Zuma cannot be allowed to re-litigate matters that have already been decided against him, Budlender says.

- Karyn Maughan

Budlender says the legal principle of "res judicata" means that - when an issue has previously been dealt with by a court - it cannot be raised again in another matter.

The state is adamant that all of Zuma's complaints against Downer have already been addressed in multiple court rulings and cannot, again, be used as the basis for another attempt to remove him.

- Karyn Maughan

While Mpofu insists that the "Stalingrad theory" that Zuma had embarked on meritless litigation to avoid his day in court is "nonsensical", Budlender points out that multiple courts - including the SCA - have found that Zuma had embarked on a Stalingrad legal campaign.

- Karyn Maughan

The SCA found that:

"The facts demonstrate that the private prosecution of Mr Downer is an abuse of the process of the court, for multiple reasons: first, as the high court found, it was instituted as a further step in a sustained attempt by Mr Zuma to obstruct, delay and prevent his criminal trial – this is an ulterior purpose, and the institution of the private prosecution was accordingly unlawful; second, it was instituted in order to have Mr Downer removed as the prosecutor in Mr Zuma's trial – this too is an ulterior purpose, which renders the private prosecution unlawful; and, third, the contemplated private prosecution is patently a hopeless case.

"It is obviously unsustainable. Mr Zuma has not made out any possible basis on which Mr Downer might be convicted, even on Mr Zuma’s own version of the facts. This, too, renders the private prosecution an abuse of the process."

- Karyn Maughan

Budlender takes Chili to the SCA's recent findings that Zuma's attempted private prosecution of Downer was an abuse that was aimed at forcing the prosecutor's removal from his trial. This finding is binding on the High Court, he says.

- Karyn Maughan

Budlender stresses that the complaints raised by Zuma have already been conclusively dealt with by multiple other courts.

- Karyn Maughan

We resume.

Advocate Geoff Budlender, for the NPA, tells Judge Chili that he has heard the arguments that Mpofu and Masuku are raising on behalf of Zuma four times before already - and they have been rejected four times.

- Karyn Maughan

We take a 15-minute break before NPA counsel Geoff Budlender responds to Zuma.

- Karyn Maughan

Mpofu argues that Zuma instituted his private prosecution against Downer and this writer on the basis of legal advice that he received.

This, Mpofu suggests, undermines court findings that the private prosecution was part of Zuma's Stalingrad strategy to evade his trial through multiple meritless applications.

- Karyn Maughan

Mpofu again stands up, because he wants to make another point. He argues that there there is not only no evidence that Zuma embarked on Stalingrad litigation, but there is also no evidence that he pursued his litigation in bad faith.

- Karyn Maughan

Masuku again raises complaints that Downer unlawfully "leaked" information to journalist Sam Sole, despite multiple court rulings to the contrary.

The conversation between Downer and Sole emerged in the Spy Tapes recordings - but did not relate to Zuma's prosecution. Instead, it was a discussion about Mutual Legal Assistance related to another Arms Deal investigation.

- Karyn Maughan

Zuma heads of argument: "While it is undeniable and true that Mr Zuma has previously brought a few legal challenges aimed at protecting his hard-earned constitutional rights...it is completely false to accuse him of having been solely or even largely responsible for the alleged '20-year-delay' in the prosecution, even putting aside the fact that the 20 year period includes a long period when the charges had been withdrawn by the state and itself".

- Karyn Maughan

Advocate Thabani Masuku now argues that the state has unfairly and wrongly argued that Zuma was responsible for the 20-year delay in his trial.

He says it was not Zuma's fault that then NPA head Bulelani Ngcuka decided not to charge Zuma alongside his former financial advisor Schabir Shaik in 2003 and then acting NPA head Mokotedi Mpshe (wrongly) elected to drop the corruption case against him.

- Karyn Maughan

Mpofu again argues, despite multiple court rulings to the contrary, that Zuma's private medical information was unlawfully disclosed through the provision of court papers filed by Zuma's lawyers themselves.

Judge Koen found that no confidential information was disclosed in that letter.

- Karyn Maughan

Mpofu is effectively asking Judge Chili to disregard - or overturn - the findings made by both by a full Bench of the Kwazulu-Natal High Court in Pietermaritzburg and the SCA regarding Zuma's private prosecution.

He focuses on the timing at which the disputed papers were filed - and says that "objective evidence" shows that Downer is a "person capable of lying to this court" and acted unethically.

Multiple court decisions have exonerated Downer - but Mpofu argues that these rulings are "suspended" because Zuma is trying to appeal them.

He argues that Zuma's "human rights" have been affected.

- Karyn Maughan