Picture: Bongani Hans Former president Jacob Zuma at the Pietermaritzburg High Court with his attorney Bethuel Thusini during an application for leave to appeal the court’s ruling against the removal of Advocate Billy Downer as the arms deal prosecutor. Picture: Bongani Hans
FORMER president Jacob Zuma has placed his hopes to escape prosecution on the arms deal corruption case on his co-accused Thales, who on Thursday applied for an acquittal on the matter.
The French arms manufacturer stated in its acquittal application, which was handed to Judge Nkosinathi Chili, that its continued prosecution along with the leader of the Umkhonto weSizwe Party (MKP) would be a travesty of justice since its two key witnesses have since died.
Advocate Dali Mpofu, for Zuma, told the court that Zuma would support and join Thales’s permanent stay of prosecution application.
“Although we don’t have instructions, I can hint that we are likely to take a position as to whether we support the application or not.
“If indeed their witnesses have died, it is an act of nature, and therefore the case can no longer proceed against them (Zuma and Thales),” said Mpofu.
He said since the case revolved around allegations of bribery, if the people who allegedly paid the bribe are no longer alive “to defend, that is the end of the case”.
“Should the permanent stay application succeed, that on its own…” he said.
An attorney representing Thales, Cameron Dunstan-Smith, said in the application that the continuation of his client’s prosecution would be unfair since it was not Thales’ making to postpone the trial 16 times.
“Since the second accused (Thales) was indicted in 2018, the second accused’s two key witnesses, who are fundamental to its defence and the charges against it have died.
“As a result of these postponements and delays, not only has the second accused been forced to incur unnecessary legal fees in stopping and starting its preparation for trial, but its ability to adduce and challenge the evidence in the criminal trial has been severed, and unjustly prejudiced, constituting an infringement of its constitutional rights,” said Dunstan-Smith.
The permanent stay application would be heard at a later stage as it would still be read by Zuma’s legal team and the prosecution before submitting response papers.
Zuma sat for the better part of the day listening to his lawyers Mpofu and Advocate Thabani Masuku convincing Chili to grant him leave to appeal against the judgment, which the same judge delivered last year against Zuma’s application to have Advocate Billy Downer removed as the prosecutor in the arms deal matter.
It was understood that due to the hearing, Zuma could not be at President Cyril Ramaphosa’s State of the Nation Address on Thursday, which he was expected to attend with former president Thabo Mbeki.
In his lengthy presentation, Mpofu said the appeal against Chili’s judgment might be overturned at the Supreme Court of Appeal on many grounds.
His argument was, among other issues, that Downer compromised himself by participating in the investigation of arms deal allegations before the charges were laid against Zuma’s former financial advisor Schabir Shaik, who was later convicted and sentenced to a jail term.
Mpofu said it was against the law that a prosecutor could prosecute a matter he had investigated.
Mpofu said Downer was not fit to prosecute because Zuma’s team would call him as a witness in the arms deal trial.
Zuma’s legal team wants Downer out of the case because he was also suspected of having leaked Zuma’s medical record to senior journalist Karyn Maughan and also disclosed other vital information about the case to another senior journalist Sam Sole, and even advised Sole on how to write the story.
In support of Mpofu’s argument, Masuku told the court that by appointing Downer to prosecute the matter, the National Prosecuting Authority violated Zuma’s legal right.
He said Downer overlapped.
“I do not understand the state’s case suggesting that separation of power does not exist, I then say it is a question of overlap.
Zuma’s lawyers want Downer to explain to the court what role he played as an investigator.
Downer’s lawyer, Advocate Andrew Breitenbach, conceded that his client was an investigator assigned to interview certain witnesses.
Chili said he would deliver the ruling on the appeal application in due course.
bongani.hans@inl.co.za