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- Jacob Zuma filed an application for leave to appeal Judge Piet Koen's dismissal of his special plea application.
- Zuma is also seeking the removal of advocate Billy Downer as his prosecutor.
- But Downer says Zuma's appeal application has poor prospects of success.
Former president Jacob Zuma's Constitutional Court appeal application for the removal of his prosecutor, Billy Downer, and his acquittal on corruption charges have poor prospects of success, the National Prosecuting Authority (NPA) argues.
"…an appeal at this stage would be contrary to the interests of justice, and the interests of justice require that the matter now proceed to trial on the accused's pleas of not guilty," Downer said in his answering affidavit.
He also argues that Zuma's application was brought four months late and was not accompanied by an application for condonation, and, therefore, should be dismissed.
"Mr Zuma thus had 15 days, reckoned from 20 May 2022 [when the SCA dismissed Zuma's application for the reconsideration of the dismissal of his application], to approach this court to seek leave to appeal against the High Court's decision dismissing his special plea. Mr Zuma did not do so."
Instead, in June, the former president applied to the apex court for leave to appeal against the decision by then President of the Supreme Court of Appeal (SCA), Mandisa Maya, who dismissed his application.
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But the apex court dismissed his arguments that Maya had grossly misdirected herself by refusing to reconsider his failed legal bid to force Downer's removal.
Maya had found there were no exceptional circumstances justifying her reconsidering the SCA's previous dismissal of the former president's attempted challenge to Pietermaritzburg High Court Judge Piet Koen's ruling that Downer had the title (legal standing) to prosecute him.
Koen had dismissed 14 grounds upon which Zuma contended that Downer lacked the "title" to prosecute him.
Those grounds included Zuma's claims that Downer had criminally violated the NPA Act by allowing court papers, containing a note from one of his military doctors, to be provided to News24 journalist Karyn Maughan.
Maughan had received the disputed court papers from advocate Andrew Breitenbach SC, who was acting for the NPA at the time.
Zuma contended that his private medical information was "leaked" by Downer, despite the fact that he failed to claim confidentiality when his lawyers filed the disputed letter in court.
However, Koen found that the letter was submitted to Downer "without any specific restrictions as regards confidentiality".
Koen held that the letter was vague and general, and did not disclose anything that could be said to amount to "an actionable violation of Mr Zuma's rights".
Zuma has since launched a private prosecution against Downer and Maughan for allegedly violating the NPA Act through the sharing of court documents submitted by his own lawyers and the prosecution.
In his recent application to the ConCourt, Zuma argues that should the apex court find that Downer lacks the title to prosecute him, "then I would be entitled to demand an acquittal".
"The implications of this application and/or appeal upon my rights are therefore far-reaching."
However, Downer has stated in court papers filed this week that Zuma's special plea "lacks a valid legal foundation and that there is no plausible factual basis for his allegations that I have misconducted myself and am guilty of criminal conduct in relation to his prosecution".
The advocate argues the court was right in holding that the issue for determination raised by the special plea was Zuma's allegation that he lacks title to prosecute, as provided in section 106(1)(7) of the CPA, and nothing more.
"The fact that Mr Zuma wrongly invoked alleged infringements of his right to a fair trial in support of his special plea does not detract from the fact that his special plea was based on the allegation that I lack title to prosecute as envisaged in section 106(1) (h), and nothing more," the prosecutor said.
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He also stated that there was no prospect of success of the apex court interfering on appeal with the High Court's special plea decision.
Zuma argues that the issue, which arises from the allegations of prosecutorial misconduct raised by the special plea, is whether he will receive a fair trial if Downer is the lead prosecutor, but Downer says the court will best determine as to whether the former president has received a fair trial.
Downer says the criminal trial has already been delayed unreasonably, and that adding a further delay will "prejudice the interest of the general public".
