Zuma’s call for Downer’s recusal a tall mountain to climb: Legal expert

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Legal expert Dr Llewellyn Curlewis says the special plea of former President Jacob Zuma calling for the recusal of State prosecutor, Advocate Billy Downer in his corruption trial at the Pietermaritzburg High Court is a tall mountain to climb.

Zuma and French arms company, Thales, have pleaded not guilty to charges of fraud and corruption in the Pietermaritzburg High Court.

The matter has been postponed to July 19 for the arguments to be heard by Judge Piet Koen.

Curlewis says the defence will have to bring exceptional arguments to court for the special plea to be successful.

On Wednesday this week, Zuma’s legal team led by Advocate Dali Mpofu presented the court with a statement in terms of the special plea that will be argued on July 19.

The plea deals with section 106 1 H of the Criminal Procedure Act.

While the State will also have a chance to present their case in this regard, Downer told the court that separate counsel was preparing this response because he was in fact the main subject of this special plea.

Former President Zuma pleads not guilty: 

‘Independence and impartiality’

Through the statement read in court, Advocate Mpofu told the court that Zuma believes that Advocate Downer lacks independence and impartiality.

“There are facts and circumstances that give me a reasonable impression that Downer had conducted himself in a manner that lacks independence and impartiality that is necessary for a lawful prosecution. Downer failed to uphold the standard and prosecutorial independence needed to secure that my trial is fair and conducted in accordance with the Constitution. Downer placed himself as a witness against me when he filed an affidavit in support of the Democratic Alliance application to review and set aside a decision by the NPA to terminate my prosecution.”

Curlewis says Judge Piet Koen will be positioned to hear the special plea as the trial Judge, saying it falls within the trial proceedings.

“No that is not possible. The pre-proceedings have already taken place that means that the judge that is currently presiding will see the matter end out unless there is another reason for recusal that might come out later on. But that is not anticipated.”

When offered the opportunity to respond on the matter of the special plea, Thales’ defence led by Advocate Barry Roux, humorously responded that they were merely “passengers” in the matter.

But he says the defence has a feat ahead of them to argue the special plea.

“Once the special plea is determined, only then is the expected of the accused to formally then plea in terms of the let’s call it the general type of pleas namely guilty or not guilty. In this instance, not guilty as he has done. It is not uncommon to enter into a special plea – the one they have raised in section 106.

The 1 H to be specific where they actually want to remove the State Prosecutor from the proceedings. In this instance advocate Billy Downer, now in very limited circumstances, will a court generally uphold such a special plea? But the grounds that was advanced by Dali Mpofu on behalf of Zuma is that Billy Downer will not be objective and independent in his prosecution of this matter because at one stage filed an affidavit on behalf of the Democratic Alliance – in a matter that was before court and based on that they say he is not independent.”

Curlewis explains the process that will follow once Judge Koen hands down judgement- possibly not immediately- on the special plea.

“If the defence is correct in their special plea and if the court upholds it and once again I repeat personally from what I have seen in the case law, and in our law journals and articles and authorities on this issue they will not be successful, but let assume for argument sake they are successful then they will also advance next prey before the court that is to the matter then be struck from the roll which will not happen because they have already pleaded not guilty in all those charges yesterday and if one reads section 106 specifically not talking about 106. The 1 H special plea I’m talking about the ordinary pleads of guilty or not guilty and this instance not guilty then the court must make a finding after such a plea only the court can do it, so no the matter will proceed after the 19.”

Over the next few days, the National Prosecuting Authority (NPA) will answer the submission by June 2.

Zuma’s legal team is expected to file their heads of argument by July 5, with the NPA following suit by July 12. The hearing for the special plea is set down for July 19.

Zuma addresses a crowd of supporters after his court appearance on Wednesday: