- The Constitutional Court has dismissed former president Jacob Zuma's last attempt to force the removal of his prosecutor Billy Downer.
- While this means that Zuma's long-awaited Arms Deal case could go ahead, Zuma could bring a legal challenge to block his trial from continuing.
- Zuma is currently seeking to privately prosecute Downer and this writer for alleged violations of the National Prosecuting Authority Act.
The Constitutional Court has unanimously dismissed former president Jacob Zuma’s last attempt to force the removal of his prosecutor Billy Downer through a so-called “special plea” process, which the former president contended would entitle him to an acquittal.
This means, conceivably, that Zuma’s long-awaited Arms Deal case could actually go ahead – unless he brings another legal challenge to block his trial from continuing.
And that seems likely, as Zuma is currently seeking to privately prosecute Downer and this writer for alleged violations of the National Prosecuting Authority Act in a separate case linked to News24’s publication of court papers containing a sick note from one of the former president’s military doctors.
Zuma has asked, in separate arguments before Pietermaritzburg High Court Judge Piet Koen, that Downer be removed as his prosecutor because of this.
In response, Koen pointed out that he had previously addressed the subject matter of Zuma's criminal complaint against Downer in his ruling on his "special plea" application – and asked for submissions from the defence and the state on whether he should step down as the trial judge as a result.
The judge will deliver his decision on his possible recusal on 30 January 2023.
In his application to the ConCourt, Zuma had argued that should the apex court find that Downer lacks the title to prosecute him, "then I would be entitled to demand an acquittal".
"The implications of this application and/or appeal upon my rights are therefore far-reaching."
However, Downer had stated in court papers that Zuma's special plea "lacks a valid legal foundation and that there is no plausible factual basis for his allegations that I have misconducted myself and am guilty of criminal conduct in relation to his prosecution".
The advocate argued the court was right in holding that the issue for determination raised by the special plea was Zuma's allegation that he lacks title to prosecute, as provided in section 106(1)(7) of the CPA, and nothing more.
"The fact that Mr Zuma wrongly invoked alleged infringements of his right to a fair trial in support of his special plea does not detract from the fact that his special plea was based on the allegation that I lack title to prosecute as envisaged in section 106(1) (h), and nothing more," the prosecutor said.
He also stated that there was no prospect of success of the apex court interfering on appeal with the High Court's special plea decision.
Zuma argued that the issue, which arises from the allegations of prosecutorial misconduct raised by the special plea, is whether he would receive a fair trial if Downer is the lead prosecutor, but Downer said the court will best determine as to whether the former president has received a fair trial.
Downer said in court papers that the criminal trial had already been delayed unreasonably, and that adding a further delay will "prejudice the interest of the general public".