Former President Jacob Zuma appeared in court at Pietermaritzburg on Wednesday morning facing fraud, corruption and racketeering charges. Picture: Doctor Ngcobo/African News Agency (ANA).
Former President Jacob Zuma appeared in court at Pietermaritzburg on Wednesday morning facing fraud, corruption and racketeering charges. Picture: Doctor Ngcobo/African News Agency (ANA).

Jacob Zuma could still use spy tapes argument in Downer recusal bid but it won’t be an easy win - experts

By Sihle Mavuso Time of article published May 28, 2021

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Durban - Two legal experts say former president Jacob Zuma could still rightly use the same spy tape arguments he used in the past to bolster his legal fight against advocate Billy Downer SC, whom Zuma wants recused as the lead prosecutor of his arms deal corruption trial.

But, if the former head of state hopes to eventually overpower Downer, unlike in the past, he must back up his court arguments with tangible and legally admissible evidence.

This was the view of two of the country’s leading legal experts, Mpumelelo Zikalala of Zikalala Attorneys in Durban, and Lawson Naidoo of the Council for the Advancement of the Constitution of South Africa (CASAC).

The two have been closely following Zuma’s corruption trial and other legal woes for years, and spoke to Independent Media on Thursday, a day after the court ordered that the matter would be heard on July 19.

Naidoo said there was nothing legally barring Zuma from using the spy tapes arguments, even though they failed to earn him a legal victory in May 2019 (and in other legal battles) when he wanted the Pietermaritzburg High Court to permanently set aside his corruption trial. That was because Zuma argued it has been tainted by political interference, and alleged improper and unconstitutional conduct by some members of the NPA and the now-defunct Scorpions.

“He can be entertained (with that evidence) because he is making a special application… but he has to produce evidence, which, as we know, he has not done in the past,” Naidoo said.

Furthermore, Naidoo said Zuma’s reading of the Act he is relying on to ask the court to remove Downer - and subsequently grant him an acquittal even before the actual trial takes place - is fundamentally flawed. This was about Zuma’s statement to his supporters on Wednesday outside court that the case would be over before the current year ended if his application was successful.

“Yes, the application can be successful and Downer can be removed from the case, but the case will still proceed to trial. The NPA will appoint another prosecutor and proceed. This will not lead to an early acquittal,” Naidoo said.

Zikalala concurred with Naidoo that indeed Zuma could use the spy tapes arguments to get Downer out, but that would not lead automatically to an early acquittal as he anticipates. However, Zikalala warned that the true intention of the application by Zuma and his legal team lies in the argument presented by his new legal eagle, advocate Dali Mpofu, who has been roped to work with another seasoned lawyer, advocate Thabani Masuku SC.

Zikalala said Mpofu had made it clear that they wanted to make this matter part of case law which spells out what happens if a prosecutor is found to have acted unethically. He said in that case, the arguments would end up in the Constitutional Court (past the Supreme Court of Appeal, where a prosecutor's improper conduct and impact on a trial was last heard). In that eventuality, the Criminal Procedure Act could be amended to include provisions that if a prosecutor behaves in an illegal or unethical manner, the case he or she is prosecuting on should be deemed contaminated and dismissed without trying the accused.

“Former president Zuma's legal team want the court to develop the interpretation of the word "title", as contained in Section 106(1)(h) of the Criminal Procedure Act to include (the) conduct of the prosecutor. The results being that a prosecutor will be deemed to have no title to prosecute if his conduct before or during the trial is contrary to the NPA Act and its code of conduct,” she said.

“The second leg of their strategy is that the non-existence of the title to prosecute be deemed as (a) fatal blow that results in a contravention of Section 35 of the Constitution. The results being that the accused must be found not guilty without looking at the merits of the case, if the prosecutor is found not to have a title to prosecute,” Zikalala said.

The battle around Downer, whose employer, the NPA, has since roped in four seasoned advocates - led by advocate Wim Trengove SC - to defend him., is part of the bigger battle where Zuma is trying to get off the hook for the 18 charges he is facing for alleged corruption, fraud and money laundering he allegedly committed between 1995 and 2005.

On Wednesday, the State indicted Zuma and he later pleaded not guilty to being bribed by Schabir Shaik’s Nkobi Holdings on the instruction of Thales, the French arms company he is in the dock with. The bribery allegedly happened when Thales wanted to use Zuma’s influence as ANC national chairperson to win lucrative tenders during the multibillion-rand SANDF arms acquisition of 1998-99.

Political Bureau

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