Durban — Drama ensued in the Pietermaritzburg High Court on Wednesday when former president Jacob Zuma’s private prosecution accused, state prosecutor advocate Billy Downer and journalist Karyn Maughan, refused to enter the dock.
Zuma, Downer and Maughan appeared in courtroom A to hear an application brought by the two accused to have their criminal case removed from the roll.
Refusing to enter the dock, Downer and Maughan argued that they were not in court as accused but as applicants to hear the outcome of their application to have their trial removed from the court roll. Their lawyers argued that sitting in the dock as if they were in a criminal trial would violate their right to human dignity.
Judge Nkosinathi Chili ruled in their favour, allowing them to remain seated next to their lawyers. This annoyed Zuma’s counsel, advocate Dali Mpofu SC, who accused Justice Chili of inventing special law for the accused.
“The law is very clear on what every other South African citizen who is accused should do.
“I think we are making history today. It is the first time in the past 2 000 years that an accused person must not sit in the dock,” said Mpofu.
Zuma decided to prosecute Downer and Maughan after his medical records, which he had submitted to the court to justify why he did not attend an arms deal-related fraud and corruption trial hearing in August 2021, were leaked to the media.
Mpofu’s request to Judge Chili that Downer and Maughan be forced to sit in the dock prompted an argument from both sides that delayed the main application for almost two hours.
Judge Chili refused to rule on requests from Downer’s advocate, Andrew Breitenbach SC, and Maughan’s advocate, Tembeka Ngcukaitobi SC, that when the court sat again on April 9 next year their clients be allowed to be absent from court during the ruling on the application to strike Zuma’s private prosecution from the roll.
Breitenbach and Ngcukaitobi also suggested that Zuma and BN Buthelezi, who would be prosecuting Downer and Maughan on behalf of Zuma, also be allowed to not to attend the ruling.
However, Mpofu put his foot down, saying that while it was right for Zuma and Buthelezi not to attend the ruling, the two accused should be in court on that day.
But he expressed scepticism that Judge Chili would rule this way.
“Maybe we will make more history by saying that they (Downer and Maughan) must defy Section 158 (1), [but] that is fine,” said Mpofu.
Section 158 (1) of the Criminal Procedure Act states that the accused should be present in the courtroom during trials.
Mpofu took offence at Breitenbach and Ngcukaitobi equating their clients to Zuma, saying that while Downer and Maughan were accused, Zuma in the private matter was equal to the national director of public prosecutions who normally did not appear in court.
Ngcukaitobi and Breitenbach’s application that Zuma’s private prosecution of Downer and Maughan should fall away was based on a judgment of the Supreme Court of Appeal (SCA) on October 13, which concurred with the Pietermaritzburg High Court’s ruling that there was no basis for the criminal prosecution.
Mpofu said Zuma had since filed an application for leave to appeal the SCA’s ruling, but Breitenbach said such an application had not been disclosed to him and Ngcukaitobi. Breitenbach said with the absence of proof that Zuma would lodge an appeal with the Constitutional Court, the SCA ruling should be treated as final and be enforced by Judge Chili.
He requested that Judge Chili order Zuma to inform the court and their clients in writing whether or not the application to the Constitutional Court had been filed and approved.
He said without proof of going to the Constitutional Court, “the decision by the next high court is final”.
Zuma also wanted to privately prosecute President Cyril Ramaphosa for allegedly conspiring with Downer and Maughan to leak his confidential medical records.
In a statement released in December last year, Ramaphosa accused Zuma of abusing legal processes and private prosecution provisions.
Ngcukaitobi and Breitenbach reached an agreement with Mpofu that the case be postponed to next year.
Judge Chili postponed the hearing to April 9, 2024, pending Zuma’s Constitutional Court appeal.
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