National Prosecuting Authority prosecutor Billy Downer is being taken to court by former president Jacob Zuma. File photo.
Image: Pool/Doctor Ngcobo/African News Agency (ANA)
The lead prosecutor in Jacob Zuma’s corruption and fraud trial, advocate Billy Downer, says the private prosecution brought against him is another attempt by the former president to avoid standing trial.
In his founding affidavit, Downer said it was another play in Zuma’s Stalingrad tactic.
“The purpose of this application is to put a stop to the private prosecution because it is an obvious abuse of the process of this court driven by Mr Zuma’s ulterior purpose to discredit me as his prosecutor. It has all the hallmarks of another play in Mr Zuma’s Stalingrad tactic,” he said.
“I have, since 2001, been the National Prosecuting Authority’s (NPA) lead prosecutor in successive prosecutions, first of Mr Schabir Shaik and others and thereafter of Mr Zuma and another. Mr Shaik was convicted of bribing Mr Zuma. Mr Zuma faces charges of corruption, fraud and money laundering.
Mr Zuma’s prosecution has been dragging on and off for the better part of 20 years. The delay has in large part been due to Mr Zuma’s Stalingrad tactic. Mr Zuma’s purpose with his Stalingrad tactic is to avoid at all costs his day in court, that is to face the charges against himAdvocate Billy Downer
“Mr Zuma’s prosecution has been dragging on and off for the better part of 20 years. The delay has in large part been due to Mr Zuma’s Stalingrad tactic. Mr Zuma’s purpose with his Stalingrad tactic is to avoid at all costs his day in court, that is to face the charges against him.
“The way in which he does so is to launch and prosecute endless challenges of various kinds. They have varied widely over the years but were all baseless and ultimately failed. They served Mr Zuma’s purposes, however, because he pursued them as far as he could to play for time.
“Whenever a challenge finally petered out, Mr Zuma initiated a fresh challenge for another round of litigation to avoid having to stand trial.”
Downer and News24 journalist Karyn Maughan were summoned by Zuma last month to appear in court on October 10, where he intends prosecuting them in relation to allegations that Downer leaked documents to Maughan.
In his affidavit, Downer said Zuma frequently attacked him in an attempt to discredit and disqualify him as the prosecutor in his case.
“He did so, for instance in the ‘Spy Tapes’ case which culminated in the Supreme Court of Appeal judgment that cleared the way for Mr Zuma’s renewed prosecution; in Zuma vs Democratic Alliance 2018; his application to the high court for a permanent stay of his prosecution, dismissed by a full bench of the high court in S vs Zuma (October 11 2019); and his plea, in terms of the criminal procedure, that I was unfit and thus lacked title to prosecute him, which his lordship justice [Piet] Koen dismissed in S vs Zuma (October 26 2021).
“Since the dismissal of his special plea, Mr Zuma repackaged two of his accusations, which justice Koen had dismissed, as criminal charges against me. When the NPA refused to prosecute, he launched a private prosecution.”
The summons accuses Downer of sanctioning the release of a letter, written by a Gen Mdutywa, by his colleague advocate Andrew Breitenbach to Maughan, and disclosing unidentified official information to journalist Sam Sole in telephonic conversations 14 years ago.
Downer said the charges against him were “quite unfounded on the facts that are common cause”.
“They suffer many obvious and fatal flaws. Justice Koen dismissed both complaints in his judgment on Mr Zuma’s special plea.”
Downer said Zuma did not satisfy the requirement to launch the private prosecution.
“Mr Zuma again does not satisfy the requirement for standing in terms of section 7(1)(a). He does not have a substantial and peculiar interest in the prosecution ‘arising out of some injury which he individually suffered in consequence of the commission of the said offence’.
“Quite to the contrary, Mr Zuma’s own attorney obtained the letter in order to make it public and did make it public before Ms Maughan publicised it.”
Downer said the charge relating to Sole was “not only wholly unfounded” but also highlighted Zuma’s “abusive tactics”.
“He has known about my conversations with Mr Sole since 2009. He has repeatedly complained about them in his failed bids to discredit me. Only now, after more than a decade, does he seek to prosecute me for the same complaint. It is obviously a last-ditch attempt to recycle the same complaint, yet again in pursuit of his Stalingrad tactic.”
Downer said Zuma’s list of witnesses, which included President Cyril Ramaphosa, was also an obviously sensationalist publicity stunt.
“The facts on which he bases his private prosecution are common cause. The witnesses on his list cannot, in any event, contribute to them at all. His list is an abusive attempt at sensationalist publicity.”
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