About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
SAFLII
>>
Databases
>>
South Africa: Kwazulu-Natal High Court, Pietermaritzburg
>>
2024
>>
[2024] ZAKZPHC 80
|

|

S v Zuma and Another (Reasons) (CCD30/2018) [2024] ZAKZPHC 80 (11 September 2024)

IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE
NO: CCD30/2018
In
the matter between:
THE
STATE
and
JACOB
GEDLEYIHLEKISA ZUMA

FIRST ACCUSED
THALES
SOUTH AFRICA (PTY) LTD

SECOND ACCUSED
REASONS
FOR ORDER
Delivered on.
11/09/2024
Chili
J:
[1]
I was requested to furnish reasons for the order which I made on 20
March 2024, dismissing Mr
Zuma’s application for the removal of
Mr Downer as the Public Prosecutor in these proceedings
,
to enable Mr Zuma to bring an application for leave to appeal.
The request was allowed and the reasons now follow.
[2]
In paragraph 100 of his founding affidavit, Mr Zuma premised his
request for the removal of Mr
Downer as a public prosecutor on four
pillars namely:
(a)
The private prosecution of Mr Downer;
(b)
The nature of the charges levelled against Mr
Downer, described as the ‘information leaking incident
of
2021’;
(c)
The nature of the charges pertaining to the ‘2008
information leaking incident’; and
(d)
Further and additional considerations, which also
have the effect of disqualifying Mr Downer.
[3]
Most importantly, in paragraph 101 of his founding affidavit, Mr Zuma
stated that any single one
of the above mentioned grounds would be
enough to justify the granting of the relief sought. He proceeded to
state that cumulatively,
all these grounds provide an insurmountable
hurdle for Mr Downer’s intended continuation in the role of
lead prosecutor and/or
prosecutor in the public prosecution.
[4]
I begin with pillar 1, the private prosecution of Mr Downer. Mr
Zuma’s request for the removal
of Mr Downer as public
prosecutor is anchored on the private prosecution of Mr Downer. It
was argued that if Mr Downer were to
prosecute Mr Zuma today, and
then be prosecuted by Mr Zuma the next day, the society would make a
mockery of our justice system.
If that were the position, then I
would not have hesitated to grant an order removing Mr Downer as a
public prosecutor. But that
is not the position. As things stand,
there is no private prosecution. All attempts by Mr Zuma to prosecute
Mr Downer have been
unsuccessful. I might just add that, as at the
date of the hearing of argument in the present application, the
Supreme Court of
Appeal had already made a factual finding that the
attempt by Mr Zuma to prosecute Mr Downer amounted to an abuse of
process.
[1]
The Supreme Court of
Appeal held as follows:
‘
The
facts demonstrate that the private prosecution of Mr Downer is
an abuse of the process of the court, for multiple reasons:
first, as
the High Court found, it was instituted as a further step in a
sustained attempt by Mr Zuma to obstruct, delay and
prevent his
criminal trial – this is an ulterior purpose, and the
institution of the private prosecution was accordingly
unlawful;
second, it was instituted in order to have Mr Downer removed as
the prosecutor in Mr Zuma’s trial –
this too is an
ulterior purpose, which renders the private prosecution unlawful;
and, third, the contemplated private prosecution
is patently a
hopeless case. It is obviously unsustainable. Mr Zuma has not
made out any possible basis on which Mr Downer
might be
convicted, even on Mr Zuma’s own version of the facts.
This, too, renders the private prosecution an abuse
of the process.’
[5]
Pillar 2 relates to the alleged leaking of Mr Zuma’s private
and confidential information to Ms
Maughan. It was argued on behalf
of Mr Zuma that the fact that Mr Downer is facing a serious charge of
disclosing the confidential
or private medical information of Mr Zuma
to Ms Maughan, in breach of
s 41(6)
of the
National Prosecuting
Authority Act 32 of 1998
, disqualifies him as a prosecutor in the
present matter. Firstly, Mr Downer denied having disclosed Mr Zuma’s
medical information
to Ms Maughan, and secondly, the issue pertaining
to the release of Mr Zuma’s medical information to Ms Maughan
was thoroughly
canvassed by Koen J in a removal application brought
by Mr Zuma in terms of
s 106(1)
(h)
of the
Criminal Procedure Act 51 of 1977
. In his judgment, Koen J
found, as an undisputed fact, that Mr Downer made no such disclosure
to Ms Maughan.
[2]
A similar
finding was arrived at by the full court of this division.
[3]
This finding was again confirmed by the Supreme Court of Appeal.
[4]
It is important to note that every attempt to overturn Koen J’s
judgment has been unsuccessful. Findings made in the removal
and
private prosecution judgements are binding on this court.
[6]
I now turn to deal with pillar 3, the alleged leaking of information
to Mr Sam Sole. Again, the
issue pertaining to the conversation
between Mr Downer and Mr Sole has been dealt with several times at
various litigation stages.
Firstly, it formed part of the spy tapes
which were utilised by Mr Zuma with the view of persuading the then
Acting National Director
of Public Prosecution, Mr Mpshe, to withdraw
the charges against Mr Zuma during April 2009.
[5]
It again surfaced before Koen J. It was again dealt with by the full
bench of this division, and ultimately the Supreme Court of
Appeal.
In his judgment, Koen J made a finding that Mr Zuma’s
accusations were ‘based on speculation, unsupported by

admissible evidence’.
[6]
It is important to note that Mr Downer, in his answering affidavit,
disputed having disclosed any information to Mr Sole relating
to Mr
Zuma’s case. In paragraph 118.5 of his answering affidavit, he
pointedly stated:
‘
I
merely described in the abstract, the mechanisms by which the NPA
obtain mutual legal assistance.’
It
is worthy to be note that in response to the above, Mr Zuma merely
stated in paragraph 97 of his replying affidavit:
‘
Here
it was Mr Breytenbach who initiated the conversation, to achieve his
own ends or those of the prosecution team. Mr Downer joined
into the
enterprise and wilfully associated himself with its criminal
objective.
In any event the remarks of Koen J relied upon were
not directed at the matter involving Mr Sole.’ (My emphasis.)
[7]
Pillar 4 related inter alia, to Mr Downer’s indispensability.
In argument, Mr Mpofu
submitted that Mr Downer is not indispensable
and added that if he were to be removed as a prosecutor, the defence
will be ready
to instantly proceed with the trial. This argument is
not supported by the evidence. In paragraph 159 of his founding
affidavit,
Mr Zuma stated:
‘
It
is, in my opinion, also very doubtful whether the current members of
the prosecution team who have been inextricably involved
in the
current legal prosecution would qualify but that is not an issue
which requires the adjudication of this court at the present
moment.’
[8]
In response, Mr Budlender argued that the question for determination
is whether our system allows
an accused person to abuse the process
by electing the prosecutor of his/her choice. He proceeded to say
that if such a process
were to be allowed, that would become a
standard tool in the toolbox for well-resourced accused persons to
abuse the process. He
further expressed the view that our law does
not tolerate such a process.  There is merit in this argument.
[9]
Mr Downer advanced numerous practical reasons why he should be
retained as a public prosecutor,
including the complexity of the
matter, preparation for trial, availability of suitably qualified
prosecutors, and the financial
prejudice to the State.
[7]
It is worth mentioning that except for reiterating that Mr Downer is
not indispensable, Mr Zuma did not deal with any of the above
reasons
in his replying affidavit.
[8]
[10]
To conclude, I am satisfied that there is merit in the submission
that the grounds advanced by Mr Zuma were
sufficiently dealt with in
previous litigation. In his own words, Mr Zuma stated in paragraph
160 of his founding affidavit that
he is aware that some of his
‘atmospheric issues had already been dealt with in previous
litigation’, albeit in pursuit
of different causes of action.
He concluded by stating
‘
whichever
way they may have been construed in such previous litigation, they
are now invoked merely to demonstrate that the overall
atmosphere is
sufficiently poisoned and too toxic to permit for any fair trial if
Mr Downer is or remains a prosecutor in the public
prosecution
brought against me.’
[11]
Having considered all the grounds relied upon by Mr Zuma, both
individually and cumulatively, I was unable
to conclude that Mr
Zuma’s right to a fair trial would be violated if Mr Downer
remained the prosecutor in this matter. Those
are the reasons for the
order I granted on 20 March 2024.
CHILI
J
[1]
Zuma
v Downer and another
[2023]
ZASCA 132
;
[2023]
4 All SA 644
(SCA)
para 11 (‘SCA judgment’).
[2]
S
v Zuma and another
[2021] ZAKZPHC 89;
[2022] 1 All SA 533
(KZP) (‘Removal
judgment’).
[3]
Maughan
v Zuma and others
[2023]
ZAKZPHC 59;
[2023] 3 All SA 484
(KZP) (‘Private prosecution
judgment’) and
Maughan
v Zuma and another; Downer v Zuma and another
[2023] ZAKZPHC 75.
[4]
SCA
judgment para 12,
[5]
Private
Prosecution judgment 110.
[6]
Removal
judgment para 233.
[7]
See
Mr Downer’s answering affidavit paras 82-93.
[8]
See
Mr
Zuma’s replying affidavit paras 75-79.