WRAP | Judge Koen dismisses Zuma's claims that Downer 'leaked' his confidential medical information

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26 October 11:27

Judge Koen also makes it clear that Zuma was required to submit himself to a medical examination by the state: "Mr Zuma was required in terms of s 37 of the CPA to submit to such an examination, and the order of this court that he should do so, was not qualified as regards when he would be required to submit thereto. Specifically, the order was not qualified that he would only have to do so after a report was filed and/or if it was favourable to him".

- Karyn Maughan 

26 October 11:09

Koen has also questioned Zuma's basis for pursuing a criminal case against Downer for providing court documents to a journalist.

"As the complaint was only made in argument and then in reply. Mr Downer did not have an opportunity to respond thereto. I accordingly also did not have the benefit of the issue having been dealt with fully in the argument. In those circumstances, I consider that it will be improper to consider the request for any such a referral further in this judgment.

"Apart from that procedural difficulty, I have doubt whether the wide terms of s 41(6) are necessarily constitutional and/or would necessarily find the application on the facts of this matter. Prima facie, it would not, in my view, be unlawful for a prosecutor to deal with enquiries from the press, to ensure that the public is properly informed of the work of the NPA and the progress in investigations, which inevitably might result in the disclosure of information which came to his or her knowledge in the performance of his or her functions in terms of the NPA Act, or any other law.

"I would have thought that s 41(6) would not, for example, prohibit a member of the NPA, in response to enquiries from a journalist, to confirm or deny that a particular suspect might or might not be formally indicted on particular charges, or that assistance regarding a particular investigation in another jurisdiction was being pursued.

"But these are simply ruminations without the benefit of having heard considered argument. If it is believed that the provisions of s 41(6) outlaws such conduct, then a formal charge in that regard can be pursued, where the proper application of s 41(6) can be fully ventilated and its proper interpretation determined." - Judge Koen on Zuma's criminal case against Downer.

- Karyn Maughan 

26 October 11:08

JUST IN: Judge Koen dismisses Zuma's claims that Downer "leaked" his confidential medical information

"Finally, the right to privacy, like most fundamental rights, except the right to life, is not an absolute right and is subject to limitations, having regard to what is reasonable and justifiable in an open and democratic society, based on human dignity, equality and freedom.

"134 Competing rights and interests must also be considered. In the present enquiry, it is not only Mr Zuma’s right to privacy that is at stake. As has been remarked earlier in this judgment, the Constitutional Court has held that fairness is not a one-way street. There are also the rights of members of the public, the proper administration of justice and the interests of justice generally, which must be considered in a prosecution where the medical condition of the accused is made an issue.

"These are all considerations, which a court will still have to consider once fully ventilated and after all medical reports relating to Mr Zuma’s treatment, medical parole, and the like, have been produced, should the medical condition of Mr Zuma be or remain a material issue for determination in further legal proceedings. I am not persuaded that the disclosure of the contents of the letter constituted an actionable violation of Mr Zuma’s rights." - Judge Piet Koen

- Karyn Maughan 

26 October 10:48

Court adjourns.

- Karyn Maughan 

26 October 10:46

Zuma's advocate Thabani Masuku hinting that he may bring another interlocutory application before his trial is due to start.

- Karyn Maughan 

26 October 10:45

Prosecutor Billy Downer says the State is ready to proceed with Zuma's trial. State and defence have agreed on 11 April, 2022 for the trial to start. Zuma's trial is expected to run for two court terms.

- Karyn Maughan 

26 October 10:32

Judge Koen confirms that he ordered that Zuma submit himself to examination by State-appointed doctors. Zuma's complaint against Downer over NPA doctors' attempt to act on this order is therefore baseless.

- Karyn Maughan 

26 October 10:19

JUST IN: Former president Jacob Zuma's special plea dismissed, his trial must go ahead.

- Karyn Maughan 

26 October 10:18

Koen says the 14 grounds of Zuma's attack on Downer were largely speculative, based on hearsay evidence and were not a basis to remove Downer as the lead prosecutor in the case.

- Karyn Maughan 

26 October 10:16

JUST IN: Judge Koen finds Zuma has failed to show that Downer lacks the title to prosecute him.

- Karyn Maughan 

26 October 10:11

Koen says the question is ultimately about whether an accused person will receive a fair trial, but that is an issue that must be decided by the trial court, he says.

- Karyn Maughan 

26 October 10:10

Koen says the fundamental basis that Zuma is attacking Downer's title to prosecute is that the State advocate lacks the impartiality and independence to try him for corruption - and he fears that he will not have a fair trial. Koen says this argument does not hold - as prosecutors should not be stripped of their title to prosecute on the basis of bias or an alleged lack of independence. This is a crucial finding - as it knocks out a pivotal aspect of Zuma's special plea.

- Karyn Maughan 

26 October 10:07

Zuma's daughter Duduzile Zuma-Sambudla is in court for Koen's ruling.

- Karyn Maughan 

26 October 10:05

Koen is reading a summary of his judgment, which is 107 pages long.

- Karyn Maughan 

26 October 10:05

Judge Piet Koen will this morning rule on former president Jacob Zuma's application for a "special plea". Zuma's through which his legal team is attempting to use the provisions of the Criminal Procedure Act to argue that his prosecutor Billy Downer, who successfully proved that the then deputy president’s former financial Schabir Shaik was guilty of corrupting him, has no “title” to prosecute him.

Such a plea is typically lodged in cases where non-State advocates are appointed to pursue private prosecutions and there is no precedent of it ever being successfully used – as Zuma is attempting to do – to remove a State advocate on the basis of a lack of independence and impartiality. 

Zuma also argues that the entire NPA has the title to prosecute him - and contends he should be acquitted of corruption.

- Karyn Maughan 

26 October 10:03

Court is in session. 

26 October 09:44

Court to rule on Zuma bid for corruption trial acquittal - and he's unlikely to accept defeat

Former president Jacob Zuma has demanded to be acquitted of corruption because of the alleged abuses he has suffered at the hands of his prosecutors – but, say legal experts, he's highly unlikely to get his way.

Attorney and criminal law expert Ulrich Roux told News24 that Zuma's application for a so-called "special plea", in which he contends that the entire National Prosecuting Authority (NPA) had lost the "title" required to try him for arms deal corruption, was "most likely to be dismissed" by Judge Piet Koen on Tuesday.

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