Downer rubbishes Zuma's bid for acquittal through his removal, says case will continue with or without him

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Former South African President Jacob Zuma stands in the dock after a recess of his corruption trial at the  Pietermaritzburg High Court.
Former South African President Jacob Zuma stands in the dock after a recess of his corruption trial at the Pietermaritzburg High Court.
Phill Magakoe / AFP

State advocate Billy Downer says there is no legal basis for Jacob Zuma to demand that he be acquitted of Arms Deal corruption, should the former president succeed in his efforts to force Downer's removal.

In papers filed at the Pietermaritzburg High Court on Wednesday afternoon, Downer contends that, should he be removed as the lead prosecutor against Zuma, there are two other State advocates on the NPA's Zuma team, who will be able to pursue the case.

In court papers, Downer argues that Zuma is again trying to revive attacks on the NPA, which have failed in multiple courts.

Essentially, he contends, Zuma is trying to seek a permanent stay of his prosecution through the completely inappropriate use of a "special plea", under section 106(1)(h) of the Criminal Procedure Act to force his (Downer's) removal.

Zuma last month pleaded not guilty to the Arms Deal-related corruption, fraud and racketeering case against him, but also lodged a "special plea", in which he argued that Downer did not have "title" to try him.

While not disputing that Downer has been appropriately designated to act on behalf of the State, Zuma argues that he must be removed as his prosecutor because he has shown a lack of independence and impartiality.

READ | Zuma's R3m pension under threat after he fails to appeal R31m in legal costs orders against him

But, as the NPA points out, the courts have already conclusively found that an application for the removal of a prosecutor on the basis of bias or an apprehension of bias cannot be conflated with a challenge to the prosecutor's "title" to prosecute – which is often raised when non-State advocates are briefed to pursue private prosecutions.

The courts have also previously found that "title" refers to whether the prosecutor appearing in court has the necessary delegation to prosecute. Downer, who has served as a State advocate for decades, clearly has that delegation and title.

On this basis alone, Downer says, Zuma's "special plea" must fail.

READ | Zuma accuses Billy Downer of lacking 'independence, impartiality' to conduct case

He also argues there is no evidence to substantiate Zuma's claim that he was aware of alleged political interference in his prosecution.

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