IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA

CASE NO: 19577/2009

In the matter between:

DEMOCRATIC ALLIANCE - Applicant

and

THE ACTING NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS - First Respondent

THE HEAD OF THE DIRECTORATE OF SPECIAL OPERATIONS - Second Respondent

JACOB GEDLEYIHLEKISA ZUMA - Third Respondent

and

RICHARD MICHAEL MOBERLY YOUNG - First Intervening Party

CCII SYSTEMS (PROPRIETARY) LIMITED - Second Intervening Party

CONFIRMATORY AFFIDAVIT

I, the undersigned,

WILLIAM JOHN DOWNER

state the following under oath -

1 I am a Deputy Director of Public Prosecutions in the National Prosecuting Authority ("NPA"), of 115 Buitengracht, Cape Town.

2 The facts contained in this affidavit are with in my personal knowledge unless stated otherwise or apparent from the context. To the best of my knowledge and belief they are both true and correct.

3 I was the head of the prosecuting team (known as the Bumiputera team) that investigated charges of racketeering, corruption, fraud and money laundering against Jacob Zuma. I signed various memoranda from the prosecuting team to acting NDPP at the time, Mokotedi Mpshe ("Mpshe"). The prosecuting team was opposed to the decision to discontinue the Zuma prosecution. We maintained that the only real consideration was whether there were merits in the charges. In our view, the intercepted conversations did not affect the decision to charge Zuma. My view remains unchanged.

4 I have read the answering affidavit of William Andrew Hofmeyr ("Hofmeyr''). I understand that Hofmeyr's affidavit has already been served and that it is intended that this affidavit will be served subsequent ly but to be regarded as having been filed together therewith. I confirm the following facts in so far as they relate to me.

Ad paragraph 16

5 The charges are not recorded accurately. Zuma was indicted on charges of racketeering, corruption, fraud and money laundering, and various alternative charges.

Ad paragraph 33

6 I confirm that on Friday 21 December 2007 Leonard McCarthy ("McCarthy") instructed me to round up the prosecution team.

7 I confirm further that McCarthy told me that Mpshe had instructed him to institute the prosecution immediately.

8 I confirm that the email I sent to Andrew Breitenbach (058/18) is included in the record of the decision.

Ad paragraph 57.4

9 I confirm that the prosecution team reported to McCarthy and that we took our instructions from him.

10 I point out that, in the .opinion of the prosecuting team, the NDPP had the statutory power to institute a prosecution, as I detail below. Previous NDPP's had made decisions to institute prosecutions, including a decision to prosecute Zuma. In practice previous NDPPs had made the decisions to prosecute corporatively. By this I mean that the Investigating Director had made the formal decisions and signed the indictments in his name, in consultation and with the concurrence of the Head of the DSO and the NDPP, after a process that always included extensive consultations with the prosecuting team.

Ad paragraph 68 - 72

11 I confirm that paragraphs 92 - 93 of Du Plooy's affidavit were settled in consultation with me, all the members of the Bumiputera team and the NPA's counsel, being Trengove SC and Breitenbach (now SC). All of us were acutely aware of the debate concerning the following:

- The decision-making powers of the NDPP;

- On what date the decision to prosecute Zuma was effectively made, if one date at all could be chosen;

- By whom the decision was made, if one or more officials at all could be chosen;

- How best accurately to record the series of events over an extended period, involving all the various NPA officials, that cumulatively made up the NPA's complex corporate detail;

- How best to ensure that the detail of du Plooy's affidavit should remain relevant to the issues in the litigation, without burdening the court with irrelevant detail.

Ad paragraph 81

12 I confirm that I was the head of the Bumiputera prosecution team

Ad paragraph 86

13 I confirm that Bulelani Ngcuka ("Ngcuka") met with the prosecution team before he announced his decision on 23 August 2003.

Ad paragraph 87

14 I confirm that in a speech to the Middle Temple Conference held in South Africa on 24 September 2010 I stated that the prosecution team did not support Ngcuka's decision not to prosecute Zuma.

15 I confirm further that Ngcuka also stated that the prosecution team did not support his decision not to prosecute Zuma at his press conference on 23 August 2003.

16 I confirm that I urged Ngcuka to prosecute Zuma. I did so on the basis of the prosecution team's assessment of the strength of the evidence against him. The prosecution team believed that there were reasonable prospects of success.

17 I confirm that during 2001 I told Ngcuka that I believed that his refusal to authorise the prosecution team to search Zuma's residential and business premises was politically motivated and designed to protect Zuma.

Ad paragraphs 92 - 93

18 I confirm that Hofmeyr told me that he had heard that the decision not to prosecute Zuma was part of a political deal to protect Zuma against prosecution in exchange for his leaving politics. I regarded what he told me as no mere than unconfirmed gossip. He did not tell me that it was Ngcuka who had told him this.

Ad paragraph 104

19 I confirm that on 17 June 2005 the prosecution team briefed Vusi Pikoli ("Pikoli") and McCarthy on the prospects of a successful prosecution of Zuma on charges of corruption.

Ad paragraph 105.5

20 I confirm that on 20 June 2005 Pikoki informed the prosecution team of his decision to prosecute Zur:r.a.

Ad paragraph 106

21 I do not agree that Pikc·li did not have the authority to make a decision to institute a prosecution against Zuma.

Ad paragraph 133

22 I confirm that I was present at the meeting between Mpshe, the deputies and McCarthy that was held on 1 November 2007.

Ad paragraphs 134 - 1 i5

23 I confirm that the meeting decided that the decision to prosecute Zuma should be left to the head of the DSO and the investigating director.

24 I did not understand this to mean that the NDPP was excluded from the Zuma prosecution decision. He was also required to authorise the inclusion of racketeering charges in the indictment and the centralization of some of the charges, which necessitated assessing the merits of the predicate offences.

Ad paragraph 146

25 I confirm that by the time the SCA delivered its judgment, the prosecution team had prepared a draft indictment, which included racketeering charges.

Ad paragraph 147

26 I confirm that after the SCA delivered its judgment, the prosecution team continued with the process of requesting information from the Mauritian authorities.

Ad paragraph 148

27 I confirm that the prosecution team expected Zuma to be charged as soon as the indictment was finalized . Zuma had been complaining of delays.

Ad paragraph 149 - 150

28 I confirm that on 7 November 2007 McCarthy raised the possibility of delaying the decision to prosecute Zuma until after the ANC's Polokwane conference. I confirm further that I told McCarthy that I did not support any decision to delay the prosecution.

Ad paragraph 155

29 I confirm that the prosecution team submitted their application in terms of POCA (to include racketeering charges in the indictment) to Mpshe on 13 November 2007.

Ad paragraph 156

30 I confirm that the prosecution team met with Mpshe, McCarthy and Hofmeyr, inter alia, on 14 November 2007 to brief them on the status of the Zuma investigation.

Ad paragraph 157

31 I confirm that it was agreed that Wim Trengove SC would be consulted on the contents of the indictment

Ad paragraph 158

32 I confirm that Zuma's Constitutional Court application did not impact on the readiness of the prosecution team and whether we could use all the material seized during the more recent searches that had been the subject of the litigation up until then.

Ad paragraph 159

33 I confirm that McCarthy did not again raise the possibility of delaying the prosecution with me.

34 I confirm further that neither Hofmeyr nor anyone else told me that McCarthy had lobbied them to delay the prosecution.

Ad paragraph 160

35 I confirm that on 17 November 2007 McCarthy telephoned me about the indictment.

36 I confirm that McCarthy instructed me that Mngwengwe, the Investigating Director, should be involved. The previous Investigating Directors had signed all previous indictments.

Ad paragraph 161

37 I confirm that on 20 November 2007 the prosecution team applied to Mpshe to authorise the centralisation of charges in terms of section 111 of the Criminal Procedure Act 51of 1977 read with section 22(3) of the NPA Act.

Ad paragraph 162

38 I confirm that on 21 November 2007, McCarthy met with me in Cape Town to discuss the prosecution.

39 I confirm that I made a file note of the meeting.

40 I confirm that my email to Breitenbach on 29 March 2009 is included in the record of the decision at D57.

Ad paragraph 172

41 I confirm that on 29 November 2007 the prosecution team met with the NDPP and the deputies to brief them on the Zuma prosecution, obtain the NDPP's decision regarding the 'prosecution in its entirety and obtain the NDPP's approval to include racketeering charges in the indictment.

Ad paragraph 174

42 I confirm that at the meeting of 29 November 2007 there was no suggestion of postponing the prosecution.

Ad paragraph 176

43 I confirm that between 30 November and 3 December 2007, the prosecution team worked on a report to the Minister of Justice in terms of section 33 of the NPA Act.

44 The report is included in the record of the decision, at D386.

Ad paragraph 177

45 I confirm that on 4 December 2007 Mpshe telephoned me to discuss the contents of the section 33 report.

Ad paragraph 178

46 I confirm that I asked Mpshe when the NPA was expected to announce its decision to charge Zuma.

47 I confirm that Mpshe told me that there was a possibility that the announcement would be made after Polokwane.

48 I confirm that I kept a handwritten record of my conversation with Mpshe. My note is included in the record of the decision.

Ad paragraph 179

49 I confirm that I was shocked by what Mpshe told me.

50 I confirm that I told Mpshe that it was important to attach the indictment to the NPA's Constitutional Court papers.

Ad paragraph 180 - 182

51 I confirm that on 6 December 2007 Mpshe telephoned me and told me that although he was satisfied with the draft indictment, he had decided to delay the prosecution until the following year because he did not want the NPA to be seen to be responsible for Zuma failing to be elected as ANC President at Polokwane. He said that he had come to this conclusion after seeing a cartoon in which Zuma was depicted running in a race with Mbeki. The cartoon depicted the NPA tripping up Zuma.

52 He mentioned that he took into account Mbeki's apparent call in a speech for stability.

53 I confirm that I made a note of the discussion. It is at D58 of the record of the decision.

54 I confirm that I was becoming increasingly uncomfortable about how accurately to describe in our Constitutional Court papers and defend generally a decision that had been taken in principle but which could not be finalized and announced until Mpshe as the NDPP had made up his mind to give the go- ahead.

55 I confirm that I felt that Mpshe had allowed the Minister to influence him.

56 I confirm that Mpshe told me that it was his decision and no one else's to delay the prosecution.

Ad paragraph 183

57 I confirm that I followed up my conversation with Mpshe with a strongly worded memorandum on behalf of the prosecution team.

58 I confirm that the contents of the prosecution team's memorandum are correctly recorded in paragraph 183 and its sub-paragraphs, as reflected in the copy of the memorandum that is part of the record.

Ad paragraph 184

59 I confirm that the prosecution team believed that the timing of the announcement was very significant and may have far-reaching consequences.

60 I confirm that our disquiet was premised on the delay being, or being seen to be protecting Zuma for no good prosecutorial reasons.

61 I confirm that the prosecution team did not regard the timing as something incidental to the prosecution.

62 I confirm that the prosecution team recognised that any decision to delay the prosecution for reasons unconnected to the prosecution was improper.

63 I confirm that the prosecution team felt so strongly about this that we had initially decided to resign from the prosecution in protest, but had reconsidered this in the interests of the NPA.

Ad paragraph 185

64 I confirm that Hofmeyr never told me that Mpshe had told him that the decision to delay the prosecution was McCarthy's.

Ad paragraph 186

65 I confirm the contents of my file note dated 7 December 2007.

Ad paragraph 187

66 I am not aware whether McCarthy knew that I kept notes of meetings and conversations.

Ad paragraph 189

67 I confirm that McCarthy discussed the contents of the NPA's Constitutional Court papers.

68 I confirm that McCarthy asked me to send him the NPA's draft papers, which I did.

69 I confirm that I faxed iv1cCarthy a copy of the NPA's draft papers on 8 December 2007.

Ad paragraph 190

70 I confirm that McCarthy asked me to amend the NPA's papers along the lines recorded in paragraph 190.

71 I confirm that McCarthy's instruction was consistent with previous decisions about how to describe the decision making process.

Ad paragraph 192

72 I confirm that I was unaware that McCarthy had shared the NPA's Constitutional Court papers with Ngcuka.

Ad paragraph 218

73 I confirm that on 21 December 2007 McCarthy telephoned me and told me that Mpshe wanted Zuma to be charged urgently.

74 I confirm that I made a note of this conversation and that the note is included in the record at D54.

Ad paragraph 219

75 I confirm that on 21 December 2007 McCarthy gave the go-ahead for the Zuma prosecution. The file note that I made, recording the details of the conversation is at D54 of the record.

Ad paragraph 220

76 I confirm that the indictment was finalised on 24 December 2007.

77 I confirm further that I instructed Du Plooy to arrange for the sheriff to serve the indictment.

Ad paragraph 224

78 The prosecution team was annoyed that the prosecution had initially been delayed despite our recommendation to the contrary.

79 The result was that we welcomed the instruction to prosecute after Polokwane. Haste remained a respectable prosecutorial imperative. We were annoyed because the decision now unnecessarily, as we saw it, interfered with the prosecution team's leave over the Christmas period.

Ad paragraph 227

80 The previous Investigating Directors had signed the Zuma indictments in the past. McCarthy told me that we should not deviate from this process for the sake of convenience since the Zuma prosecution may become the subject of litigation in future. I agreed with McCarthy's instruction.

Ad paragraph 228

81 I confirm that the prosecution team was present at the meeting between Mpshe and the deputies on 18 March 2009

Ad paragraph 250 - 251

82 I confirm that the prosecution team presented its memorandum on what we believed to be shortcomings in Zuma's representations at the meeting on 18 March 2009.

Ad paragraph 252

83 I confirm that we were ail shocked about at the contents of the recordings as they cast serious doubt on McCarthy's integrity.

84 I was reduced to tears.

85 Notwithstanding the contents of the recordings, the prosecution team remained convinced that Zuma's representations for the prosecution to be discontinued should have been declined.

Ad paragraph 253

86 I confirm that I was concerned about the source of the recordings. I also believed that Zuma wou1d have encountered difficulties had he attempted to rely on the recordings in his application for a permanent stay of prosecution.

Ad paragraph 256

87 I confirm that the meeting on 30 March 2009 considered the following:

87.1 The prosecution team's report back on their consultation with Ngcuka;

87.2 Mpshe's attempts to get McCarthy to comment on the allegations;

87.3 Mzinyathi and Hofmeyr's interaction with the NIA. Ad paragraph 257

88 I confirm that I conducted the meeting with Ngcuka on 24 March 2009 and that I took minutes of the meeting.

Ad paragraph 258

89 I confirm that I obtained McCarthy's contact details and spoke to his secretary.

90 McCarthy refused to take my calls despite the fact that his secretary confirmed to me that he was in his office at the time that I tried to call.

Ad paragraph 273

91 I confirm that the prosecution team (including me) did not believe that McCarthy's conduct tainted the Zuma prosecution.

Ad paragraph 276

92 I confirm:

92.1 The prosecution ·team did not believe that Zuma would have made his claims under oath.

92.2 Furthermore, the prosecution team did not believe that the decision to prosecute was tainted by McCarthy's conduct.

92.3 The timing of the institution of charges remained (and remains) a subsidiary consideration. It is not central to the merits of the case against Zuma.

WILLIAM J DOWNER

2 JUNE 2015