Lawyers for Jacob Zuma this week served senior prosecutor Billy Downer with an application seeking his removal from the former president’s fraud and corruption trial, leaving the state to comment that his defence was clutching at non-issues in a case that has been beset by delays for some 17 years.
“We handed the application and all the supporting documents to advocate Downer,” Zuma’s attorney Mondli Thusini confirmed to the Mail & Guardian on Thursday morning.
The National Prosecuting Authority (NPA) said it received the application close to midnight and at a glance “it looks like a regurgitation of the old false issues that have been previously rejected by the courts”.
Judge Piet Koen on Monday postponed the case until Wednesday 26 May to allow the state to receive and respond to the application arguing that Downer has no title to prosecute the matter.
NPA spokesperson Sipho Ngwenya said the state would in court give “a full and clear argument in rejection of what has been put forward by the defence”.
The bid to have Downer removed is not a standard application for recusal but will be brought in terms of section 106(h)(1) of the Criminal Procedure Act on the basis that Downer lacks the proper delegation from the national director of public prosecutions, Shamila Batohi.
Outside court on the first day of the trial, the NPA noted that Downer has been working on the arms deal case for close on two decades, and insisted that he is duly mandated to take it to trial.
The application by advocate Thabani Masuku SC revived perceptions that the 79-year-old former president is playing for time on charges that have haunted him since 2005 — the year when he was first charged after then-president Thabo Mbeki fired him as deputy president.
However, correspondence from Zuma to one of his former lawyers show a man convinced of his innocence, apparently confused by the advice of his legal representatives and desperate to salvage his reputation.
Referring to his advanced age, he proclaims that he does not want to be cast as a man trying to run away from court forever. He hints that he was reluctant to follow suggestions that he embark on medical treatment abroad, forcing a further delay.
The corruption charges against him were withdrawn in 2009, paving the way for him to crown a political comeback with being elected president. The charges were reinstated only after he was recalled by the ANC in 2018.
Koen did not this week ask Zuma to plead formally to 12 charges of fraud, two of corruption and one each of racketeering and money-laundering. Instead he will be asked to do so once the court has heard arguments from both sides as to whether Downer should continue to lead the state’s case.
These charges stem from the contention that he took R4.1-million, in 791 separate instalments, from his former financial adviser Schabir Shaik, some of it as inducement to use his influence to help French arms manufacturer Thales secure contracts with the state and shield it from investigation for irregular dealings.
The company won a contract to supply the postapartheid navy with combat systems and is accused number two in the case, facing two charges of corruption, one of racketeering and one of money-laundering.
Thales is represented by advocate Barry le Roux SC, who became a household name during the Oscar Pistorius murder trial.
Zuma finds himself with a drastically reduced legal team ahead of a week that will not only see him back in court in Pietermaritzburg but the following day argue a last-ditch attempt in the Constitutional Court to appeal a personal and punitive cost order stemming from his failed challenge to former public protector Thuli Madonsela’s report, State of Capture.
In April, Eric Mabuza withdrew as Zuma’s attorney of record and Muzi Sikhakhane as his lead counsel, leaving him with Masuku and Thusini.
Masuku will also appear for him in the Constitutional Court next week after handling his unsuccessful application, along with Sikhakhane, to the Supreme Court of Appeal (SCA) for leave to appeal the 2017 Pretoria high court costs order.
Madonsela in her report, released in late 2016, directed Zuma to establish a judicial commission of inquiry to further probe evidence pointing to corruption in the upper echelons of the state.
Exceptionally, she ordered that the chief justice, and not the president, appoint the judge who would head the commission, as her findings pointed to Zuma having improper ties to the Gupta family, to the extent that they knew in advance that he would appoint Des van Rooyen as finance minister in December 2015.
Zuma challenged Madonsela’s power to direct him to appoint a commission of inquiry and argued that the law did not bestow the power on the chief justice to designate the judge who should chair the inquiry.
In December 2017, the court dismissed his application, finding that the public protector had acted within her power and that it was fitting in this instance that the chief justice designate who should lead the inquiry, given that Zuma and his son Duduzane were personally implicated.
It said the president’s motivation had been to spare himself, his family and friends further scrutiny, and that this merited a punitive cost order.
Zuma promptly applied for leave to appeal but the following month, as his grip on power slid, said he would proceed to establish the commission. Chief Justice Mogoeng Mogoeng appointed Deputy Chief Justice Raymond Zondo to head the inquiry, which has now heard two years and nine months of testimony about grand corruption at the highest levels of state.
In April 2018, President Cyril Ramaphosa withdrew the application for leave to appeal the ruling but not the costs order as this affected Zuma in his personal capacity.
The SCA dismissed Zuma’s appeal bid last year, concurring with the high court that he was motivated by personal interest when he challenged Madonsela’s report.
“It cannot conceivably be in the interests of justice to permit Mr Zuma to pursue an appeal against the costs order, in circumstances where the launch of the review application was reckless and motivated by personal interests,” the court found.
“His delay in establishing the commission of enquiry into serious allegations of state capture was prejudicial both to the public and national interest, and subversive of our democratic ethos.”
And beyond even these two cases lies Zuma’s reckoning with the Zondo commission in the Constitutional Court over his refusal to testify before it. The court has yet to rule on the commission’s application that he be sentenced to a punitive jail term for contempt.
He failed to formally oppose the application and instead accused the commission of political persecution. Among the recriminations he levels at his lawyers is that he felt dismissed when he asked what approach would be taken in the matter. Sources close to Zuma say he felt they bowed to pressure to abandon him.
But members of the legal fraternity say it might rather be a case of counsel distancing themselves because they are weary of incurring one defeat after another on brief from a prescriptive client who is unable to pay their fees.