Today, former president Jacob Zuma again seeks to have state prosecutor Billy Downer recused from his arms deal case at the Pietermaritzburg High Court.
In his court submission in April, Zuma raised three grounds in support of his interlocutory application – often called a trial within a trial.
It has been two years since the main arms deal trial started.
Even so, the corruption allegations in the state’s arms procurement deal date back to Zuma’s tenure in 2005 as deputy president to Thabo Mbeki, whom he succeeded after a political coup in Polokwane in 2007.
The thrust of his argument was that he believed Downer could no longer grant him a fair trial as guaranteed in section 35 of the constitution.
He said he was armed with evidence showing that Downer’s overall conduct in relation to his prosecution was inconsistent and incompatible with his right to a fair trial.
The three grounds he raised to support his argument included that, as of September 5 2022, he had initiated a private prosecution against Downer and News24 reporter Karyn Maughan over the alleged leak of his private medical records.
The case has since fallen apart as the Pietermaritzburg High Court in August set aside the private prosecution.
And earlier this month, the Supreme Court of Appeal brushed off efforts to overturn the ruling.
The development means Zuma would now seek to persuade the court on the remaining two legs.
However, according to Downer, the country’s courts have already dismissed these arguments several times in separate but related disputes.
In the first instance, Zuma raised a conflict of interest on Downer’s part.
He cited “the state’s evidence of its own criminal complicity in [his] criminal prosecution dating as far back as the beginning of [his] prosecution when Mr Downer was assigned to prosecute [him]”.
In this regard, Zuma relied on the affidavit of former deputy national director of public prosecutions, advocate Willie Hofmeyr.
Zuma said the contents pointed out that the National Prosecuting Authority (NPA) “lacks the impartiality and independence to conduct a fair prosecution against me”.
“In fact, his own colleagues deprecated the conduct of named NPA officials who are implicated in the criminal conduct set out in the affidavit of Hofmeyr, which Downer has defended rigorously,” according to Zuma.
He said in court papers that out of the zealousness to nail him, Downer sought the help of persons implicated in criminal wrongdoing in relation to his prosecution.
“His conduct is that of a prosecutor who harbours a historically very unkind, unfair, and biased view of me,” he continued.
On the second and slightly similar leg, Zuma submitted that Downer was, from the beginning, both the prosecutor and investigator in his case.
“When the decision to terminate the criminal prosecution against me was taken by senior members of the NPA, Mr Downer specifically opposed that decision and did so emotionally.
“It is common cause that he cried when evidence was produced that senior NPA officials and politicians had unlawfully interfered with my criminal prosecution.”
Zuma said he, therefore, holds “a reasonable apprehension that Downer lacks the requisite independence, integrity, and impartiality to conduct a constitutionally compliant criminal trial against [him]”.
