Downer private prosecution remains on court roll

State prosecutor Billy Downer and former president Jacob Zuma go head to head. Picture: Independent Newspapers.

State prosecutor Billy Downer and former president Jacob Zuma go head to head. Picture: Independent Newspapers.

Published Nov 2, 2023


Durban - FORMER president Jacob Zuma’s private prosecution against state advocate Billy Downer and journalist Karyn Maughan will remain on the court roll, Pietermaritzburg High Court Judge Nkosinathi Chili said yesterday.

Four court rulings have gone against Zuma in the private prosecution matter and he has applied for leave to appeal to the Constitutional Court after a recent Supreme Court of Appeal (SCA) finding.

Judge Chili yesterday postponed the matter to April 2024 to allow the former president time to finalise his appeals.

Zuma has alleged that Downer violated the NPA Act by sharing court papers containing his medical information with Maughan.

Advocates Andrew Breitenbach for Downer and Tembeka Ngcukaitobi for Maughan, yesterday argued that the private prosecution should be removed from the roll or adjourned and how this should unfold.

Ngcukaitobi said Judge Chili must determine whether there is a valid private prosecution, given that the SCA had made a ruling against Zuma.

He insisted it was not valid and that lawyers for Maughan have contended that the invalidated private prosecution should be struck from the roll.

“There are four rulings against Zuma and all of them say that there is no private prosecution,” Ngcukaitobi said.

Breitenbach said that the case had been invalidated by four court rulings and the state agreed that, “should this invalidation be overturned, Zuma’s private prosecution can be reinstated”.

Breitenbach and Ngcukaitobi said if Judge Chili did not want to strike the case from the roll, they agreed it be adjourned until next year, asking that their clients do not have to appear on that date.

Zuma’s counsel, advocate Dali Mpofu argued that the former president’s private prosecution against Downer and Maughan cannot be removed from the court roll.

Mpofu said that the private prosecution is still alive, despite the ruling by the SCA.

He said the SCA’s enforcement of the ruling that invalidated Zuma’s private prosecution “had no impact on this court, because the former president is seeking to appeal it”.

Downer and Maughan have secured a special SCA order making it immediately enforceable – and effectively excusing them from having to appear in the dock, but Mpofu said because Zuma is seeking to appeal the ruling, the private prosecution continues to exist.

Karyn Maughan and State Advocate Billy Downer at the Pietermaritzburg High Court. Picture: Doctor Ngcobo Independent Newspapers

Judge Chili said while the matter would not be struck from the roll, it was adjourned to April 2024, which would be a holding date, and he said Zuma, Downer and Maughan did not have to attend court on that day.

Earlier, Mpofu said Downer and Maughan were in contempt of court because they were not seated in the dock.

He described it as “voluntary defiance” of the court and said it was an act of “pure arrogance”.

Ngcukaitobi and Breitenbach said the SCA ruling had essentially nullified the private prosecution and the summonses against their clients.

Ngcukaitobi said: “On each occasion the respondents are compelled to appear in the criminal dock, their personal liberty is further inhibited and human dignity further eroded”.

Judge Chili found that in circumstances where the constitutional rights of Downer and Maughan are at stake, it would not be appropriate or just for them to be forced to sit in the dock.