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WATCH | Top take aways from Zuma vs Downer, Maughan High Court applications

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  • Two court applications relating to former president Jacob Zuma's private prosecution of advocate Billy Downer and News24 legal journalist Karyn Maughan continued on Monday.
  • Maughan and Downer launched separate applications to have the matter set aside.
  • Downer brought his application to have the private prosecution scrapped to end Zuma's abusive and unlawful private prosecution, and his "Stalingrad" strategy.

It was a day of arguments in the KwaZulu-Natal High Court in Pietermaritzburg, where two applications relating to former president Jacob Zuma's private prosecution of advocate Billy Downer and News24 legal journalist Karyn Maughan were heard.

The matters had been set down for Monday and Wednesday, with most submissions completed by Monday afternoon.

Maughan filed an urgent application against Zuma, asking the KwaZulu-Natal High Court to scrap his private prosecution against her in its entirety. Downer made a similar application.

Here are five top takeaways from the day in court: 

1. Advocate Geoff Budlender SC for Billy Downer commenced the day with scathing submissions that concisely encapsulated his arguments on the private prosecution.

He said Zuma's case began on 29 June 2005, and that nearly 18 years later, Zuma abused court processes to prevent having his day in court. 

Of the private prosecution, he said it was without merit and "unsustainable", adding: "It was initiated for an ulterior purpose, namely to delay the prosecution and if possible to prevent it from happening at all.

Budlender added that Downer brought his application to have the private prosecution scrapped to end Zuma's abusive and unlawful private prosecution, and his "Stalingrad" strategy. "If an order is made accordingly, it will also put a stop to other steps which Mr Zuma will no doubt otherwise take, based on the existence and/or proceedings of the abusive and therefore unlawful private prosecution."

READ | Billy Downer wants Zuma to put up R1m security if he wants private prosecution

2. For Maughan, advocate Steven Budlender SC argued that Zuma failed to deal with pertinent allegations that the legal journalist made. One of the key points he argued was that a nolle prosequi certificate was not issued specifically against Maughan. The certificate indicates that the NPA does not intend to prosecute in the matter. 

He said that when KZN Director of Public Prosecutions (DPP) Elaine Zungu told Zuma's attorney that the first nolle prosequi certificate was issued "Maughan was not contemplated as a suspect but rather only a witness". 

Zungu advised him that the only suspect under consideration was Downer, and she had declined to prosecute him. This prompted Zuma's lawyers to seek a second certificate. That certificate, however, does not reference Maughan, Budlender said. 

The letter from Zungu said: "I, Elaine Zungu, DPP, have seen all statements and affidavits and decline to prosecute any person in connection with this matter."

Budlender said: "She [Maughan] is not mentioned as a subject or someone in respect of a criminal charge. That was in reference to prosecutors and investigators."

3. For the Helen Suzman Foundation, advocate Kate Hofmeyr SC said the case against Downer was "abusive". She said Zuma's conduct in formulating this case proved that it was being pursued for an "ulterior purpose".

"A party who uses power for a purpose for which it was not designed, commits a fraud on the power. In this case, Mr Zuma, a criminal accused himself, has initiated a private prosecution against his prosecutor while his own criminal prosecution remains pending."

4. Advocate Toni Palmer, who argued for the SA National Editors' Forum, Campaign for Free Expression, and Media Monitoring Africa Trust, framed her arguments around media freedom and the targeting of journalists, particularly women in so-called strategic lawsuits against public participation (SLAPP) suits.

She said SLAPP suits referred to the growing trend of quashing criticisms and debate through abusive litigation.

"The use of SLAPPs is not intended to vindicate a right, but to silence the specific journalist targeted and to have a broader "chilling effect on the work of journalists and the media. SLAPP suits are instruments for intimidating, censoring and silencing critical voices in the media" she said.


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