Zuma can only appeal for 'my removal if he's convicted'

The Citizen

07-07-2025

The arms deal case was declared trial-ready four years ago but has been delayed by Zuma's repeated failed efforts to force the removal of Billy Downer.
State prosecutor Billy Downer has opposed Jacob Zuma's latest legal move, arguing that the former president's latest bid to force his removal should only be heard if—and when—Zuma is convicted and sentenced in his arms deal corruption case, which has been dragging on for the 'better part of 21 years'.
In April 2025, Judge Nkosinathi Chili dismissed Zuma's second application bid to have Downer removed, saying he did not believe the former president's right to a fair trial would be compromised if Downer remained as a prosecutor.
Zuma instructed his lawyer, Advocate Dali Mpofu, to petition the Supreme Court of Appeal (SCA) to appeal Chili's ruling.
Legal framework
In papers filed before the SCA, Downer argues that the legal framework and arguments surrounding Zuma's application for leave to appeal to remove him​ are clear and well-established.
'As the High Court's refusal of Mr Zuma's attempt to have me removed as a prosecutor was a decision made during a criminal trial, it may be appealed only if and when Mr Zuma is convicted and sentenced.'
Downer also argues that Zuma's prosecution has been dragging on for the better part of 21 years.
The delay has in large part been due to Mr Zuma's alleged 'Stalingrad strategy', through which he allegedly seeks to avoid having to face the charges against him.
'He does this by launching and prosecuting multiple challenges of various kinds. They have all failed. He then pursues them through successive attempts to appeal. When a challenge finally peters out, he initiates a fresh challenge through another round of litigation. The purpose is contrary to his public rhetoric that he wants his day in court – to avoid ever standing trial,' Downer said.
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Stalingrad Strategy
Downer further argues that the 'Stalingrad strategy' used by Zuma raises 'spurious objections' which are dismissed by the court, but the former president pursues them on appeal 'as far as he possibly can'.
'Once the case is finally dismissed on appeal, he raises another point (or sometimes the same point again) in another case and repeats the exercise.
'Those who employ the Stalingrad defence do not seek merely to delay the start or the continuance of the criminal trial against them. They also use it to attempt to delegitimise the prosecuting authority and/or the prosecutors assigned to conduct the prosecution. Some accused persons use it to attempt to delegitimise the court,' Downer argued.
Dismiss Zuma appeal
Downer argued it is crucial for the SCA to summarily dismiss Zuma's latest appeal bid.
'The state views this as yet another instalment in Zuma's alleged 'Stalingrad strategy', aimed at delaying the criminal trial indefinitely. The SCA's decision could either reinforce or challenge the judiciary's stance on curbing such tactics.'
Downer argues that he accepts that, subject to the court's inherent power to curb abuses of its process, an accused has a right to raise procedural objections 'however bad they might be.'
'The trial court, however, retains a discretion to order that the trial proceeds, in line with its obligation to ensure that the speedy trials for which section 35(3)(d) of the Constitution provides do take place.'
In February 2025, Mpofu argued that it was 'racist and condescending' to assume that the former president's team was following Advocate Kemp J Kemp's Stalingrad legal strategy in fighting the state corruption in 2018.
ALSO READ: Zuma trial: 'Downer can't be a prosecutor and accused in same matter' – Mpofu
Trial delays
In the affidavit, Downer detailed how Zuma's alleged Stalingrad Strategy had delayed his trial for years after then-acting NPA head Mokotedi Mpshe's unlawful 2009 decision to withdraw the corruption case against Zuma and French arms company Thales was invalidated.
The charges against the duos were reinstated in 2018. Zuma and Thales then tried, and failed, to seek permanent stays of their prosecution last month.
Quest to remove downer
Zuma's insistence that he was owed a long and complex ruling on his latest attempts to remove Downer — despite the fact that multiple courts had conclusively rejected his various complaints — was just one of many arguments he made to the SCA as part of his efforts to revive an appeal that Chili found to have no reasonable prospects of success.
Zuma's second failed attempt to force Downer's removal followed his unsuccessful efforts to privately prosecute Downer and journalist Karen Maughan for the alleged violation of the NPA act through the sharing of publicly available court papers, which contained a sick note from one of the former president's doctors.
Plea
On 26 May 2021, Zuma and Thales pleaded not guilty to charges against them.
Zuma objected to Downer leading his prosecution on behalf of the NPA, accusing the advocate of prosecutorial bias, claiming that Downer lacked the title to prosecute him.
Trial Judge Piet Koen dismissed the application, in which Zuma accused Downer of unlawfully leaking publicly available court documents and the sick note to Maughan.
Now Downer is using Koen's unchallenged ruling on that special plea application, where the judge found there was 'no scope' for Zuma to appeal the dismissal of his special plea
'In the absence of a prompt resolution of that real issue between the parties, there is no scope for an appeal prior to conviction, based on section 17(1)(c) of the Superior Courts Act, to argue the SCA should reject the former president's latest appeal to force his removal.
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Delays
Koen found Zuma's 'prosecution and trial have already been delayed considerably and unreasonably, which makes an intermediate appeal, which will cause even further delay, contrary to the interests of justice.
Koen said allowing an appeal at this stage would be contrary to the SCA's duty to actively discourage preliminary and 'piecemeal litigation, but obviously always within the confines of fairness.'
Abuse of court
Downer argues that this ruling stands and makes it clear that the SCA should dismiss Zuma's latest appeal attempt, and that the former president should finally face trial.
'I respectfully submit that this application for leave to appeal is part of a continuing process of the abuse of court process. It is a further repetition of arguments which have repeatedly been rejected by the courts.
'The proposed grounds of appeal have no reasonable prospect of success. And there is no other compelling reason why the appeal should be heard, I respectfully ask that the application be dismissed with the application for condonation,' Downer said.
Zuma and Thales trial will be back in court in December.
Charges
The 81-year-old Zuma and French arms manufacturer Thales are facing multiple charges, including fraud‚ corruption, money laundering, and racketeering, in connection with the controversial multibillion-rand arms deal procurement concluded in the late 1990s while he was vice president.
It is the state's case that Zuma was kept on a corrupt retainer by his former financial advisor, Schabir Shaik, who then allegedly used his political clout to further his own business interests.
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