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Jacob Zuma camp in bid for recusal of trial prosecutor

Former president Jacob Zuma’s defence team was believed to be armed with transcripts of damning phone exchanges between State advocate Billy Downer and controversial Amabhungane investigative journalist Sam Sole as their basis for a recusal application against Downer. Picture: Doctor Ngcobo/African News Agency(ANA)

Former president Jacob Zuma’s defence team was believed to be armed with transcripts of damning phone exchanges between State advocate Billy Downer and controversial Amabhungane investigative journalist Sam Sole as their basis for a recusal application against Downer. Picture: Doctor Ngcobo/African News Agency(ANA)

Published May 19, 2021

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DURBAN - FORMER president Jacob Zuma’s defence team was believed to be armed with transcripts of damning phone exchanges between State advocate Billy Downer and controversial Amabhungane investigative journalist Sam Sole as their basis for a recusal application against Downer.

It is widely understood that Zuma’s team will serve the State with their reasons on Wednesday on why they want Downer to be removed as the prosecutor in his corruption case, which is back in court next week.

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For the record, at the time of publication, the Daily News had not received confirmation from Zuma’s legal team as to whether the transcripts, widely available online, would form the basis of their recusal application. In the 2008 transcripts, the two discuss Sole’s story about the arms deal where the journalist asks Downer if he could read for him what he had so far in his story.

Also, in conversation between the two, Downer shares what seems to be highly sensitive information pertaining to the arms deal investigation and coaches Sole on what direction his story and narrative should take.

“The justice minister and the National Prosecuting Authority (NPA) are locked in a battle on the survival of the arms deal investigation,” reads a section of the transcript.

Further in the conversation, Downer speaks of the State’s investigation into the arms deal where he said: “It’s irritating because all we got are the reports of what they reported to have filed. We as an investigation team have never had insight into the content of what they allegedly revealed.”

Sole then confirmed with Downer if it would be fitting for him in his story to say that “German Investigation reopened on SA side,” as he had confirmation that a formal investigation was under way.

Downer then advises Sole to say in his article: “Ongoing investigation on SA side. In other words, Germans may have dropped theirs but we haven’t dropped ours. You can refer to the terms in the 2002 investigation, formal terms of reference included in there.”

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And further on, while it was unclear who between the two said this, within the conversation one of the two said: “Listen we must sit down, quite a lot of stuff that I can share with you, where you are... There’s quite a lot on Geargiadus that I can share with you.”

In the Pietermaritzburg High Court on Monday, Zuma’s defence team said that it would serve the State with the recusal application against Downer.

Zuma’s instructing attorney, Mondli Thusini of Thusini Attorneys, refused to discuss the transcripts. “I can’t comment on the transcripts because I have not seen them,” said Thusini. However, he did confirm to the Daily News his team would serve the State with their recusal plea on Wednesday.

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Political analyst Professor Sipho Seepe has called on the National Prosecuting Authority to remove Downer as a prosecutor in the case, citing the prejudice against Zuma.

Seepe told the Daily News on Tuesday that if there was ever any prejudice against Zuma by the NPA, the transcripts were clear evidence that the NPA always had a vendetta against him.

He said the transcripts proved that Downer was no longer a competent individual to preside over the case for the NPA because he was compromised.

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Seepe said it came as no surprise that Zuma was a target of the media because it was known that the NPA was driving the public campaign to portray Zuma as a criminal before the court of law found him guilty.

“The NPA trialled Zuma in the court of public opinion and found him guilty; its intention was to draw public sympathy, which they did get because Zuma has been already found guilty in the eyes of the public. My advice to the NPA is that if it wants to save itself from humiliation, it must remove Downer from the prosecution team. He is now tainted. What he has done was wrong. In terms of the law, NPA must do its work without favour or prejudice and Downer’s action has prejudiced Zuma,” said Seepe.

He said that in the transcripts it was Downer who was telling a story to the journalist to achieve a particular narrative and sway the public’s opinion against Zuma before the trial.

NPA spokesperson Sipho Ngwema said he could not comment as he had not seen the transcripts and would only do so once the NPA has seen Zuma’s defence application.

“I don’t think we should speculate on what they will raise on Wednesday in the application as the basis of Downer’s recusal, so let’s wait. Remember, all these were brought up during the unsuccessful stay of prosecution application,” said Ngwema.

Sole confirmed the transcripts but said they were not new. He said the transcripts were part of the Spy Tapes and were disclosed by Zuma’s former attorney, Michael Hulley, in 2015 in an affidavit that tried unsuccessfully to achieve similar to what Zuma’s current lawyers were trying.

“It is notable that advocate Downer gave mostly technical explanations on the process. To the best of our knowledge, he was never found guilty of any misconduct in relation to these conversations,” said Sole.

Black Lawyers Association Durban and Coastal chairperson Mpumelelo Zikalala said the application may cause a huge delay because it could end up in the Constitutional Court. He said Zuma may have a case but he would have to prove that Section 25 of the NPA act dealing with professional conduct was violated by Downer’s action.

He said Zuma must also prove that sections 32 and 35 of the Constitution, which dealt with impartiality and fair trial, were indeed violated.

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