WRAP | Judgment reserved in Zuma case, postponed to 26 October

Mpofu says NPA officials who provide information about prosecutions to other parties can be criminally charged and face a 15-year sentence. He says Zuma will pursue further legal action if his complaint to President Ramaphosa about this alleged "leak" is not resolved properly.

- Karyn Maughan

Mpofu says it's “preposterous” for Trengove to argue that the court documents that the state gave to the journalist were not confidential – as a letter contained in those papers, from Zuma’s doctor, was marked confidential. He says Zuma “takes the strongest possible exception” to his health information being disclosed in the media and contends that many of Zuma’s family members did not know that he had a serious health condition.

- Karyn Maughan

Mpofu says Trengove “performed an exercise in smoke and mirrors” when he denied that the State had done anything wrong by giving the court papers in the first Zuma postponement application to a journalist.

He argues that this was a “leak” because the affidavit provided to the journalist was unsigned. He also contends that the journalist was “coached” because senior counsel Andrew Breitenbach provided the documents on condition that they could only be written about once they were filed in court and became public documents.

- Karyn Maughan

Mpofu now argues that "the best prosecutor in the world" would lose thee title to prosecute a shoplifter who had stolen from his or his wife's shop, His removal would not be as a consequence of his ability, he argues.

- Karyn Maughan

Mpofu is trying to argue that Downer should be removed as Zuma’s prosecutor, in part, because he was not dispassionate about the case and was intent on winning it. But the Porritt ruling delivered by the Appeal Court makes it clear that prosecutorial impartiality must be understood in the context of the role that prosecutors play in South Africa. According to the SCA, our criminal proceedings are adversarial in nature, and "it is inevitable that prosecutors will be partisan".

It was not a sin for a prosecutor to want to win the case that he or she was trying. It is accepted globally and in South African courts that "prosecutors usually approach criminal prosecutions with a view, sometimes a very strong view, that accused persons are guilty". The Court, however, added that this is "subject to the caveat that they must not prosecute in single-minded pursuit of a conviction".

- Karyn Maughan

Mpofu continues to argue that Downer’s objectivity was tainted by the fact that he gave evidence in the DA’s “Spy Tapes” case, where the party successfully challenged then acting NPA head Mokotedi Mpshe’s decision to drop the case against Zuma. Trengove yesterday pointed out that Downer had been asked to make a statement by the NPA, not the DA, and had repeated his stance that he disagreed with Mpshe’s decision. That stance was vindicated in the Appeal Court’s ruling on the case.

- Karyn Maughan

Mpofu is going through all thee case law that he claims supports Zuma's application for acquittal through a special plea - an indication, perhaps, that he is concerned by Trengove's arguments that the relief Zuma is seeking is legally ludicrous.

- Karyn Maughan

Mpofu is spending a lot of time on the Porrit judgment, which was delivered by the Supreme Court of Appeal in 2014. The Court found that the removal of a prosecutor through a Section 106(1)(h) plea did not entitle an accused person to an acquittal.

The Appeal Court made that clear when it overturned alleged fraudster and former Tigon CEO Gary Porritt's successful bid to challenge the title of State advocate Jan Ferreira and private counsel Etienne Coetzee SC to try him for fraud, racketeering and violations of the Income Tax Act, the Companies Act and the Stock Exchange Control Act.

Porritt had argued that the pair were biased against him. Mpofu contends that the ruling did not exclude the possibility that an accused could be acquitted after successfully challenging the title of a prosecutor to try him or her.

- Karyn Maughan

Mpofu is attempting to push back against the NPA’s argument that the relief that Zuma is seeking – that he be acquitted following the removal of Downer and the NPA as his prosecutors – is legally impermissible.

- Karyn Maughan

Judge Koen indicates that he will take several weeks to write a “proper judgment” on Zuma’s plea.

- Karyn Maughan

Mpofu hits back at Trengov for arguing that the inquiry Zuma has asked for was “unheard of”. He says the law allows for a plea raised by an accused to be “tried” – a term he speaks to the possibility of an oral hearing. Mpofu is adamant that Zuma’s “special plea” is not based on “conspiracy theories” but on the admissions made by the NPA itself.

- Karyn Maughan

Trengove wraps up his argument. Mpofu will now reply.

- Karyn Maughan

Trengove says the issues Zuma wants investigated appears to be based on "conspiracy theories" with little to no evidence behind. He argues that Zuma has realised "that his conspiracy theories will not stand up. [in this special plea application]..and then he asks for a fresh judiciary-initiated inquiry". This is "unheard of", Trengove says. He adds that there is no real dispute of fact in this case - a requirement for a court to refer a case to an oral hearing. Instead, he says, there are "conspiracy theories and conjecture on one hand" and first-hand credible evidence on the other.

- Karyn Maughan

Zuma also wants the court to initiate a second inquiry "into whether I should be acquitted". Trengove describes Zuma's mooted investigation as a "free-wheeling inquiry".

- Karyn Maughan

Court resumes. Wim Trengove responding to Zuma’s demands for an inquiry into the conduct of the NPA. He made this demand in reply to the state’s response to his special plea and says he wants to be able to cross-examine key NPA officials.

- Karyn Maughan

Dali Mpofu says the NPA are 'vultures' for seeking to physically examine Zuma

Former president Jacob Zuma's advocate, Dali Mpofu, has accused the National Prosecuting Authority (NPA) of being "vultures".

He says they sought to conduct a physical examination on Zuma, even before his own doctors had completed a medical report.

Trengove also denies that the letter disclosed any of Zuma's private medical information and again stresses that Zuma's own lawyers included it in court papers, which were not declared confidential.

- Karyn Maughan

Trengove also denies that the letter disclosed any of Zuma's private medical information and again stresses that Zuma's own lawyers included it in court papers, which were not declared confidential.

- Karyn Maughan

Trengove also points out that Zuma's lawyer disclosed the same letter he now complains about Downer leaking - in Zuma's application for a postponement.

He says the attorney failed to disclose this to the court.

- Karyn Maughan

Trengove is now addressing Mpofu's accusations that Downer leaked Zuma's confidential medical information to the media.

He denies this and says the letter in question was part of court papers.

It was part of a public record, he says.

- Karyn Maughan

Trengove rubbishes Zuma's claims that Downer unethically gave evidence in support of the DA's challenge to Mpshe's decision to drop the case against him.

He points out that Downer was asked to file an affidavit by the NPA, where he repeated his views that Mpshe's decision was incorrect.

Trengove also denies that Downer leaked confidential information about Zuma's prosecution to the media.

There is no evidence of this, he says.

- Karyn Maughan

Trengove says Masuku's claims that ex NPA head Bulelani Ngcuka directed the Zuma prosecution are hyperbolic and unsupported by the Appeal Court's ruling on the Spy Tapes case.

- Karyn Maughan

Trengove points out that lawyers for the NPA and Zuma both conceded that Mokotedi Mpshe's decision to drop the corruption case against Zuma - on the basis of the Spy Tapes - was irrational.

The Appeal Court was also scathing in its assessment of Willie Hofmeyr's evidence of a political conspiracy against Zuma, which his lawyers are now seeking to rely on.

- Karyn Maughan

Trengove says it's "not competent" for Zuma's lawyers to argue that the NPA does not have the title to prosecute him.

He adds that it is clear that Downer does have the title to prosecute Zuma and says Zuma is effectively trying to use his special plea to make a complaint of prosecutorial misconduct against Downer.

In other words, he says, Zuma's lawyers are using the wrong law to seek Downer's removal.

- Karyn Maughan

Trengove stresses that the right of the NPA to prosecute is constitutionally entrenched and strongly denies that the "special plea" provisions of the Criminal Procedure Act can be used to challenge the state's title to prosecute.

Zuma is trying to use his special plea to ensure that the entire NPA cannot try him.

- Karyn Maughan

Trengove argues that Zuma has tried to dress up his fair trial complaints - which have repeatedly failed in other court cases- as a "special plea".

One hundred and thirty paragraphs of Zuma's special plea were "copy pasted" from the former president's aborted bid to appeal the dismissal of his permanent stay application in the Constitutional Court.

This is "same old, same old", he says.

- Karyn Maughan

Trengove comes out guns blazing and slams Zuma's lawyers for their extraordinary attacks on Downer, which he says are defined by insult and hyperbole.

He points out that Downer had started to cry when he found out about the unlawful conduct uncovered in the Spy Tapes - a demonstration of his integrity.

"The man should be given a medal," Trengove says, after pointing out that Doweer "stood up to his bosses" when they made unlawful or unjustified decisions in the case.

- Karyn Maughan

In court papers, Downer says Zuma's "fears" that he had covered up for McCarthy "lack any factual foundation".

"At the risk of stating the obvious, the fact that I reported to Mr McCarthy regarding the investigation and prosecution of [Zuma] – he was the Head of the DSO [Scorpions] and the investigation and prosecution was a DSO project – that did not mean that I 'would have known' (i.e. I knew) about his involvement in other matters."

"I was not aware of Mr McCarthy’s ‘intelligence connections’ or that he was engaged in conversations with and receiving gifts from Mr Pienaar while he was the Head of the [Scorpions], if indeed there is any truth to these allegations," Downer states.

- Karyn Maughan

Zuma has claimed that he has "come across information" that McCarthy was an operative for America's Central Intelligence Agency and was handled by an agent called "Andre Pienaar". Zuma claims "Pienaar", who he says was code-named "Luciano", was responsible for getting McCarthy his job at the World Bank.

"I fear that Mr Downer SC has covered up McCarthy’s despicable conduct in manipulating my trial for political and intelligence reasons," Zuma states, adding that "sources" had provided information that McCarthy had "regular and unlawful" contact with foreign intelligence agencies "during his investigation of me".

According to Zuma, the "Spy Tapes" recordings that prompted then acting National Prosecuting Authority boss Mokotedi Mpshe to unlawfully drop the corruption case against him in April 2009, "prove that McCarthy had received gifts from the CIA agent and had discussed, without any authorisation to do so, my case". These gifts, he later states, were Christmas presents.

- Karyn Maughan

Masuku insists that Zuma and his lawyers "are not trying to impugn the integrity of Mr Downer" and insists that he is not trying to prosecute Downer. But he simultaneously attacks Downer for saying that he did not know about the alleged efforts of foreign spies to interfere in the Zuma prosecution. Again, Zuma and his lawyers have not provided any real evidence of this alleged interference.

- Karyn Maughan

 Masuku now argues that Downer would have known that t Leonard McCarthy and the Scorpions had been involved in the compilation of the “Browse Mole Report”. That report contained allegations that various African states and local organisations were assisting Zuma in furthering his presidential ambitions. Downer failed to do anything about this unlawful report, Masuku argues.

Former NPA head Vusi Pikoli confirmed in court papers that the Browse Mole report never formed part of the state’s investigation into Zuma – an argument that was accepted by the Pietermaritzburg High Court, when it dismissed Zuma’s application for a permanent stay of prosecution.

"He [Pikoli] pointed out that the contents of the Browse Mole report had nothing to do with and played no part in the investigation and prosecution of Mr Zuma and Thales, and that during his time as the NDPP, it was not handed to the investigators and prosecutors handling the investigation and prosecution of this case," the High Court stated.

- Karyn Maughan

Masuku insists that there should have been a "proper investigation" into the evidence that emerged in the Spy Tapes, which he insists revealed that McCarthy was "being assisted by foreign spies". He highlights that McCarthy has refused to provide an affidavit on the Spy Tapes recordings. Mokotedi Mpshe has also refused to give evidence.

- Karyn Maughan

Koen: maybe you are right and the NPA fell short, how does that fall on Mr Downer?

- Karyn Maughan

Masuku now says the Spy Tapes ruling "will probably be something that he (Downer) gloats about" because it vindicated his stance. But he continues to argue that Downer is implicated in NPA wrongdoing or failed to take appropriate steps to report it.

- Karyn Maughan

Comment: There is clear tension between Masuku and Koen.

- Karyn Maughan

Masuku seeks to cast doubt on Downer's assertions that he did not know anything about former Scorpions boss Leonard McCarthy's alleged contact with a foreign intelligence agent. But it does not appear he has any evidence to substantiate this suspicion.

- Karyn Maughan

Koen is starting to push back - and keeps pointing out that the Spy Tapes judgment vindicated the stance taken by Downer, who was adamant that Mokotedi Mpshe was wrong to drop the Zuma prosecution on the basis of the Spy Tapes. That judgment also raised significant questions about the conduct of Hofmeyr and Mpshe. Koen points out that Downer was consistently vocal about his disagreement. He also takes issue with Masuku's off the cuff comment that Downer should have reported his disquiet about the decision with the NPA's "Integrity Office". Koen then asks Masuku if he made this complaint in Zuma's court papers. No, he says.

- Karyn Maughan

Masuku claims some of the Spy Tapes recordings show that Downer leaked confidential information about the Zuma prosecution to journalist Sam Sole. But the transcripts of the recordings reveal that the pair only discussed Zuma’s case once – and in relation to a legal technical issue.As Sole’s amaBhugane unit later stated, the transcripts Zuma is now relying on to claim that Downer was “hellbent” on pursuing him was “a strange choice for Zuma’s defence”, given that the conversations were largely about political obstacles being placed in the way of investigators who were pursuing German and UK strands of the Arms Deal. Zuma had no connection to these cases, which largely impacted on Mbeki’s political camp.

- Karyn Maughan

Judge Koen points out to Masuku that Downer was "vindicated" by the Appeal Court's ruling in the Spy Tapes case. Masuku now argues that Downer was a witness to the abuses described by Hofmeyr and should have reported the NPA's allegedly criminal conduct. Masuku again argues that Downer unlawfully leaked information to journalist Sam Sole. The state denies this.

- Karyn Maughan

We resume. Advocate Thabani Masuku addressing the state's argument that the complaints raised by Zuma have already been dealt with by multiple courts - and that, essentially, Zuma is trying to revive his unsuccessful efforts to seek a permanent stay of prosecution. It appears Masuku is relying heavily on evidence given in the Spy Tapes case by former Asset Forfeiture Unit head Willie Hofmeyr to bolster his argument that Zuma's prosecution was fatally tainted by political appearance. Based on this testimony, Masuku says Zuma's prosecution was "a crime scene". (Crucially though, the Supreme Court of Appeal dismissed Hofmeyr's evidence as largely unsubstantiated and speculative).

- Karyn Maughan

Mpofu completes his argument. Advocate Thabani Masuku will continue Zuma's argument at 13:45pm.

- Karyn Maughan

Mpofu is unhappy that NPA doctors wrote to Zuma's lawyer to seek an opportunity to examine him. He contends that there are "national security" concerns at play. "You cannot have a busybody trying to touch your body and take your pulse", he says. He further claims that Zuma's lawyers had asked for the CVs of the NPA doctors, but did not receive them.

- Karyn Maughan

Mpofu accuses the NPA doctors of "hovering" to examine him, before his military doctors had completed their report on him. He calls them "vultures" and seeks to undermine any suggestion that the NPA had a court-ordered right to have its own doctors examine Zuma. Mpofu says this examination can only happen if the former president seeks a further postponement on the basis of ill-health.

- Karyn Maughan

Mpofu says former president Zuma wrote to President Cyril Ramaphosa to complain about the alleged leak of his confidential medical information to the media. Ramaphosa asked Justice Minister Ronald Lamola to refer the complaint to the Legal Practice Council.

- Karyn Maughan

Mpofu now contends that Downer leaked confidential information about the Zuma trial to journalist Sam Sole. Sole has disputed this. Mpofu now accuses the State of leaking affidavits related to Zuma's recent application for a postponement because of his ill health, to a journalist. This disqualifies Downer from prosecuting Zuma, he says.

- Karyn Maughan

Comment: Mpofu says Zuma lawyers have the right to query whether Downer is performing his role as a prosecutor "dispassionately", given that his evidence that he was "reduced to tears" when he heard the Spy Tapes recordings - in which former Scorpions head Leonard McCarthy and former prosecutions boss Bulelani Ngcuka discussed the timing when Zuma should be charged. But prosecutors are not expected to be dispassionate - they are attempting to prove the guilt of the accused because they believe that the accused is guilty. Secondly, Mpofu is attempting to question Downer's impartiality because he disagreed with then acting NPA head Mokotedi Mpshe's decision to discontinue the Zuma prosecution on the basis of the Spy Tapes. But Downer's stance was vindicated in the court rulings on the Spy Tapes decision.

- Karyn Maughan