Zuma's application for stay of prosecution must be dismissed, NPA argues in court papers
12 March 2019
The National Prosecuting Authority says former president Jacob Zuma's application for a stay of prosecution should be dismissed, as it believes that there is a strong case against him.
"The State prays that the application by the first accused for a permanent stay of prosecution be dismissed," Senior Deputy Director of Public Prosecutions advocate Billy Downer SC said in his answering affidavit, filed in the KwaZulu-Natal High Court.
In his affidavit, Downer states that, although Zuma is right in saying he could have been charged and tried together with fraudster Schabir Shaik, Nkobi group and Thomson, his allegations as to why that did not happen were "devoid of any truth".
Downer has also denied that Zuma’s prosecution is based on political considerations.
"I deny the NPA has acted unlawfully, unconstitutionally and in a partisan manner in relation to Zuma’s prosecution," Downer said.
Downer is currently leading the State's case against Zuma.
He is a veteran prosecutor who successfully prosecuted Shaik and former Western Cape top cop Arno Lamoer.
He led the NPA investigation into the arms deal since the early 2000s and prosecuted Shaik, Zuma's former financial adviser, between 2004 and 2006.
Zuma's rights 'not violated'
Downer also led the Zuma prosecution in 2009 when former acting prosecutions boss Mokotedi Mpshe dropped charges against the former president.
In his affidavit, Downer said Zuma’s complaint that he should have been joined as a co-accused with Shaik, Nkobi and Thomson had no basis in law.
"The NPA has the power to institute and conduct criminal proceedings on behalf of the State," he said.
Downer said former National Director of Public Prosecution Bulelani Ngcuka’s decision not to do so therefore did not violate Zuma's rights.
He said the State’s case relied "heavily" on the books and records, including books of account, minutes of meetings and correspondence of Shaik, Nkobi and Thomson, to which Zuma was not a party.
He said much of the evidence was admissible against Shaik, Nkobi and Thomson because it was their document.
"But their admissibility against Zuma was uncertain at that stage," Downer said.
'Impermissible and malicious'
"Conversely, had Ngcuka decided to prosecute Zuma, having concluded as he did that there were no reasonable prospects of success, such a prosecution would have been impermissible and malicious," he said.
"Ngcuka simply could not have prosecuted Zuma on this basis, whether or not Zuma thinks that he should have been prosecuted then.
"This contention is unfounded because the prospects of a successful prosecution of Shaik, Nkobi and Thomson and Zuma respectively, depended on the available evidence, the admissibility, relevance and strength of which against each of them differed."
Downer also said that Zuma’s right to a fair trial did not entitle him to demand a trial "designed and structured so as to serve his best advantage".
During Zuma’s last appearance in the KwaZulu-Natal High Court in Pietermaritzburg on November 30, 2018, Deputy Judge Mjabuliseni Madondo ordered that the permanent stay of prosecution arguments, together with criminal proceedings be heard on May 20.
Zuma filed a 300-page affidavit, asking for a permanent stay of prosecution.
He claimed he was a victim of an orchestrated attempt by the NPA to link him to corruption.
Arms deal
Thales, the arms company implicated with Zuma, also filed its application in the High Court to have the prosecution permanently set aside.
It claimed that it had been denied a fair trial because of unreasonable delays, and that its right to present and challenge evidence had also been denied.
The embattled former president faces serious charges, including one count of racketeering, two counts of corruption, one count of money laundering, and 12 counts of fraud relating to 783 payments he allegedly received in connection with the controversial arms deal.
The arms deal was formally known as the Strategic Defence Procurement Package.
It was a multibillion-rand military acquisition project finalised in 1999.
But Downer said in his affidavit: "I deny Zuma’s allegations that his prosecution is politically motivated.
"I deny the NPA lacks prosecutorial independence and has not pursued Zuma’s prosecution in a constitutionally compliant way.
"I deny Zuma’s 'background, status and role in society as a political leader and a public figure' are relevant to the issues in dispute in this matter."
