State's Heads - Zuma S 106 (1) (H) - 12 July 2021

IN THE HIGH COURT OF SOUTH AFRICA
(KWAZULU-NATAL DIVISION, PIETERMARITZBURG)
Case CCD30/2018
In the matter of:
THE STATE
and
JACOB GEDLEYIHLEKISA ZUMA First Accused
THALES SOUTH AFRICA (PTY) LIMITED Second Accused
THE STATE’S SUBMISSIONS ON FIRST ACCUSED’S SPECIAL PLEA

2
CONTENTS
INTRODUCTION .................................................................................................. 3
CHRONOLOGY .................................................................................................... 8
THE LAW ............................................................................................................ 19
Section 106(1)(h) ............................................................................................ 19
Section 106(4) ................................................................................................. 22
Prosecutorial independence............................................................................ 23
SECTION 106(1)(h) IS NOT APPLICABLE ........................................................ 26
MR ZUMA’S COMPLAINTS ................................................................................ 29
Mr Ngcuka’s refusal to authorise searches of Mr Zuma’s properties .............. 29
Mr Ngcuka’s decision not to prosecute Mr Zuma ............................................ 30
Mr Downer’s dismissal of the Public Protector’s report ................................... 34
Mr Downer’s conduct in the Shaik trial ............................................................ 36
Nicholson J’s findings of political interference ................................................. 39
Mr Mpshe’s April 2009 decision and Mr Hofmeyr’s affidavit ............................ 40
Mr Downer’s public reaction to Mr Mpshe’s decision ...................................... 56
Mr Downer’s affidavit in the Spy Tapes matter ................................................ 59
‘Browse Mole’, Mr McCarthy’s and foreign intelligence services ..................... 60
Mr Downer’s failure to report political interference .......................................... 67
Mr Downer’s alleged leaks to the media ......................................................... 68
Mr Downer’s insistence that Mr Zuma be prosecuted ..................................... 70
A HEARING OF ORAL EVIDENCE .................................................................... 75
CONCLUSION .................................................................................................... 79
TABLE OF AUTHORITIES.................................................................................. 80
Legislation ....................................................................................................... 80
Case law ......................................................................................................... 80
3
INTRODUCTION
1. The first accused, Mr Zuma, has raised a special plea, purportedly in terms
of section 106(1)(h) of the Criminal Procedure Act 51 of 1977, that
Adv William John Downer SC be removed as the prosecutor in this case as
he has no title to prosecute; and, further, that in the event that Mr Downer
is removed, that he (Mr Zuma) be acquitted in terms of section 106(4) of the
CPA.
2. The special plea comprises a plea signed by Mr Zuma 1 and a plea
explanation in the form of a founding affidavit by Mr Zuma. 2 On 26 May
2021, the State delivered an answering affidavit by Mr Downer. 3 On 9 June
2021 Mr Zuma delivered his replying affidavit. 4
3. In paragraphs 1 to 3 of the special plea 5 Mr Zuma contends that Mr Downer
has no title to prosecute as envisaged in section 106(1)(h) of the CPA and
should be removed as the prosecutor in this case for two reasons:
3.1. First, he has a reasonable apprehension that Mr Downer lacks the
independence and impartiality necessary for a lawful prosecution,
more specifically to ensure that his trial is fair and is conducted in
accordance with the Constitution and the common law.
1 Plea in terms of sections 106(1)(h) and (4), pp 1-4

2 Founding affidavit, pp 5-141
3 Answering affidavit, pp 1454-1607
4 Replying affidavit, pp 4157-4235
5 Pages 1-3
4
3.2. Second, Mr Downer is an essential witness on the issue whether
there was political interference in the prosecution which has violated
his right to a fair trial in section 35 of the Constitution.
4. In paragraph 4 of the special plea 6 Mr Zuma contends that, should his plea
to have Mr Downer removed be successful, he is entitled to be acquitted in
terms of section 106(4) of the CPA on the basis that no fair trial may be
conducted in the circumstances set out in his plea explanation.
5. In paragraph 14 7 and elsewhere in his replying affidavit 8 Mr Zuma claims
that the determination of his special plea requires ‘an evidentiary hearing
on two aspects’, namely ‘whether, as a fact, Mr Downer lacks the
independence and impartiality to conduct a lawful prosecution, even though
he can prove the formal qualifications’ and ‘whether I should be acquitted in
terms of section 106(4)’. Mr Zuma says the latter entails examining
‘whether the State has lost the title to present evidence against me’. He
concludes his replying affidavit by saying that he ‘will seek an order that an
evidentiary hearing be conducted on the issues relating to whether evidence
of political meddling has undermined the State’s duty to conduct a fair and
impartial hearing’. 9
6. In summary, the State’s answer is the following.
6 Page 3
7 Page 4162
8 Pages 4162-3 paras 15-16, p 4179 para 51, pp 4189-91 paras 68-9, p 4193 para 76, p 4195
paras 80-81, p 4214 para 145 and p 4234 para 213
9 Replying affidavit, p 4234 para 213
5
7. First, section 106(1)(h) is not applicable because it is common cause that
Mr Downer is a Deputy Director of Public Prosecutions in the National
Prosecuting Authority, established in terms of section 179 of the
Constitution, who has been designated by the Director of Public
Prosecutions for the KwaZulu-Natal Division of the High Court of South
Africa to exercise, on behalf of the Republic, in all courts within her area of
jurisdiction, the powers mentioned in sections 20(1)(a), (b) and (c) of the
National Prosecuting Authority Act 32 of 1998 in respect of the prosecution
of the accused in this matter.
8. Second, should this Court uphold Mr Zuma’s special plea, that Mr Downer
lacks title to prosecute as envisaged in section 106(1)(h), Mr Zuma will not
be entitled to demand an acquittal in terms of section 106(4) because the
DPP has designated two other prosecutors to exercise, on behalf of the
Republic, the powers mentioned in sections 20(1)(a), (b) and (c) of the NPA
Act in respect of the prosecution of the accused in this matter. If she deems
it necessary, the DPP may designate another prosecutor as a replacement
for Mr Downer as well.
9. Third, Mr Zuma’s claim that he is entitled to be acquitted in terms of section
106(4) because no fair trial may be conducted in the circumstances set out
in his plea explanation, is in substance a claim for a permanent stay of
prosecution. However, like the second accused Thales, 10 in mid-November
2018 Mr Zuma brought an application for a permanent stay of his
prosecution in this Court. On 11 October 2019 those applications were
10 Previously named Thint Holding (Southern Africa) (Pty) Ltd and Thomson-CSF Holding
(Southern Africa) (Pty) Ltd
6
dismissed by a Full Court (comprising Mnguni, Steyn and Poyo Dlwati JJ)
(S v Zuma and Another; Thales South Africa (Pty) Limited v KwaZulu-Natal
Director of Public Prosecutions and Others [2019] 4 All SA 845 (KZD). In
April 2020, after applying unsuccessfully for leave to appeal to the Supreme
Court of Appeal, Mr Zuma withdrew an application for leave to appeal to the
Constitutional Court. Mr Zuma is seeking to use the device of a plea in
terms of section 106(1)(h) and an acquittal in terms of section 106(4) to seek
against the same party (the State) essentially the same relief as he did in
the application for a permanent stay of prosecution which the Full Court
dismissed on 11 October 2019. Having failed to obtain a stay of prosecution
in recent pre-trial proceedings, he is not entitled to relitigate for a stay under
a different guise at the start of his criminal trial.
10. Fourth, almost all of the issues Mr Zuma now raises were raised and
decided, adversely to him, in Zuma v Democratic Alliance and Others;
Acting National Director of Public Prosecutions and Another v Democratic
Alliance and Another 2018 (1) SA 200 (SCA) and/or in his recent application
for a permanent stay of prosecution. The findings of the SCA in the Spy
Tapes case are binding upon him on the basis of the doctrine of issue
estoppel. Moreover, he is not permitted to relitigate at this juncture the
issues on which he failed in his recent stay application.
11. Fifth, and in any event, as appears from Mr Downer’s answering affidavit
and from the judgments of the SCA in the Spy Tapes case and of the Full
Court in his stay application, all Mr Zuma’s contentions are wholly
unfounded.
7
12. Finally, Mr Zuma’s application for oral evidence should be disallowed. For
the most part, there are no real disputes of fact. Most of the purported
disputes are confined to the State’s denial of Mr Zuma’s conspiracy
theories, which are not underpinned by any evidence at all. And in the few
instances where there are disputes of fact, the preponderance of
probabilities on the affidavits favours the State. What Mr Zuma wants is to
cross-examine Mr Downer and perhaps others in an attempt to make a case
where none existed before.
13. The remainder of these heads is structured as follows:
- We provide a chronology of the main relevant events.
- We discuss the law on challenges to the prosecutor’s title to prosecute
under section 106(1)(h), on section 106(4) and on prosecutorial
independence.
- We deal with the State’s first point in limine.
- We address each of Mr Zuma’s complaints in turn. When doing so, in
addition to addressing their merits, we show that in most instances the
issue has already been decided adversely to him by the SCA in the Spy
Tapes matter and/or by the Full Court in his application for a permanent
stay of prosecution.
- We deal with Mr Zuma’s application for the hearing of oral evidence.

8
CHRONOLOGY
14. Most of the relevant facts are described in the chronology of relevant events
in the Full Court’s judgment, 11 which is based largely on the chronology in
Mr Downer’s main answering affidavit for the State in Mr Zuma’s application
for a permanent stay of prosecution. 12
15. We give the following overview.
16. The origin of the charges against Mr Schabir Shaik and the ten companies
in his Nkobi group in what became case number CC27/04 in the Durban
High Court, as well as the charges against Mr Zuma, his present co-
accused Thales and a now deregistered associated company of Thales
named Thint (Pty) Ltd, 13 was a wide-ranging preparatory investigation by
the NPA in terms of section 28(13) of the NPA Act as part of a multi-agency
joint investigation team together with the Auditor-General and the Public
Protector into the whole of the acquisition of strategic armaments for the
Department of Defence during the late 1990s.
17. Since 2001 Mr Downer has been a member of the prosecution team leading
the NPA’s investigations and since late 2003 he has been the lead
prosecutor in the criminal matters against Mr Shaik, Nkobi, Mr Zuma, Thales
and Thint referred to above and described below.
11 Downer affidavit (stay), pp 2053-2244 paras 95-510

12 Full Court’s judgment, paras 3-112. See Mr Downer’s corrections and clarifications in the
answering affidavit, pp 1473-1475 para 37
13 Previously named Thomson-CSF (Pty) Ltd
9
18. During 2001 the NPA investigators, who were members of the then newly-
established Directorate of Special Operations, or Scorpions, in the NPA,
discovered an encrypted fax from Mr Thétard (the executive chairman and
chief executive officer of Thales and a director of Thint) to his superiors
Mr Perrier of Thomson-CSF (International) in Paris and Mr De Jomaron of
Thales International Africa Ltd in Mauritius. It recorded an agreement
concluded with Mr Zuma that in return for an annual payment of R500 000
he would protect the Thales group against the investigation into the arms
deal and support it in future projects.
19. On 23 August 2003 the then National Director of Public Prosecutions
Mr Bulelani Ngcuka announced that Thint would be prosecuted together
with Mr Shaik and Nkobi, and that Mr Zuma would not be prosecuted
because the State did not have a winnable case against him.
20. On 30 October 2003 Mr Zuma lodged with the Public Protector a complaint
about the manner in which the NPA had conducted the investigation into
him.
21. On 19 April 2004, following an approach by the Thales group, Mr Ngcuka
agreed to withdraw the charges against Thint if Mr Thétard provided an
affidavit saying he was the author of the encrypted fax.
22. On 20 April 2004 Mr Thétard made the affidavit.
23. On 10 April 2004 Mr Thétard made a further, unsolicited affidavit. It said
the encrypted fax was never sent. It also said he refused to testify in South
Africa or any other country outside France.

10
24. On 28 May 2004 the Public Protector reported on his investigation into
Mr Zuma’s complaint against the NPA. The findings included that
Mr Ngcuka had unjustifiably infringed his right to dignity and acted unfairly
and improperly in making the media statement on 23 August 2003 to the
effect that he would not be prosecuted despite there being a prima facie
case against him.
25. On 11 October 2004 the State nonetheless withdrew the charges against
Thint and the Shaik trial commenced.
26. On 2 June 2005 Mr Shaik and Nkobi were convicted. 14
27. On 20 June 2005 the new NDPP Mr Pikoli announced his decision to
prosecute Mr Zuma.
28. On 18 August 2005 the DSO conducted an extensive search-and-seizure
operation, including at Mr Zuma’s premises, at the office of his then attorney
Mr Hulley, at Thales’ South African offices and at the Pretoria home of its
then local chief executive officer Mr Moynot.
29. On 10 October 2005 Mr Zuma and Mr Hulley launched an attack on the
search warrants in the Durban High Court.
30. On 4 November 2005 Thales and its co-subsidiary Thint were summonsed
to appear as Mr Zuma’s co-accused in a trial scheduled to start on 31 July
2006 in this Court.
14 S v Shaik and Others 2007 (1) SACR 142 (D). On 6 November 2006, in an appeal by
Shaik and Nkobi, the SCA confirmed the findings and orders of the trial court (see S v Shaik
and Others 2007 (1) SA 240 (SCA)); and on 2 October 2007 the CC dismissed a further
application by Shaik and Nkobi for leave to appeal to it (see S v Shaik and Others 2008 (2)
SA 208 (CC))
11
31. On 5 January 2006 Thales and Thint launched an attack on the search
warrants in the Pretoria High Court.
32. On 15 February 2006 the Durban High Court upheld Mr Zuma’s and
Mr Hulley’s attack on the search warrants. 15
33. On 4 July 2006 the Pretoria High Court dismissed the search warrant
attacks by Thales and Thint. 16
34. On 19 July 2006, due to the search warrant litigation, the State applied in
this Court for the postponement of the criminal trial to a date in the first half
of 2007.
35. On 31 July 2006 Mr Zuma, Thales and Thint opposed the State’s
postponement application and counter-applied for permanent stays of their
prosecution.
36. On 20 September 2006 Msimang J refused the State’s postponement
application and struck the case from the roll, 17 thereby bringing to an end
the prosecution initiated by Mr Pikoli’s decision. 18
37. In December 2006 Thales and Thint joined Mr Zuma in opposing an
application by the State in this Court for the issuing by a judge of a letter of
request to the Mauritius authorities for the originals of documents seized
during searches there in October 2001.
15 Zuma and Another v NDPP and Others 2006 (1) SACR 468 (D)
16 This judgment has not been reported and is not available on Saflii
17 S v Zuma and Others (CC358/05) [2006] ZAKZHC 22 (20 September 2006)
18 Answering affidavit, p 1569 para 131.2
12
38. On 2 April 2007 this Court issued the letter of request. 19
39. On 8 November 2007, in appeals by the State, Mr Zuma, Thales and Thint
regarding the search warrants and the letter of request, the SCA upheld the
search warrants 20 and the issuing of the letter of request. 21
40. On 28 December 2007, when Adv Mpshe SC was the Acting NDPP,
Mr Zuma, Thales and Thint were re-charged.
41. On 23 June 2008 Mr Zuma brought an application in this Court for judicial
review and the setting aside of the decision to re-charge him on the ground
that he was not given a prior hearing.
42. On 31 July 2008 the CC dismissed the final appeals by Mr Zuma, Thales
and Thint regarding the search warrants22 and the letter of request. 23
43. On 12 September 2008 Nicholson J, sitting in this Court, upheld Mr Zuma’s
no-prior-hearing application for judicial review. 24
44. On 12 January 2009 the SCA reversed Nicholson J’s decision. 25
45. In February and March 2009 Mr Zuma’s legal representatives Mr Kemp SC
and Mr Hulley made representations to the NPA that the charges against
19 National Director of Public Prosecutions v Zuma and Others (13569/2006) [2007] ZAKZHC
4 (2 April 2007)
20 National Director of Public Prosecutions and Others v Zuma and Another [2008] 1 All SA
197 (SCA) and Thint (Pty) Ltd v National Director of Public Prosecutions and Others [2008]
1 All SA 229 (SCA)
21 Zuma and Others v National Director of Public Prosecutions [2008] 1 All SA 234 (SCA)
22 Thint (Pty) Ltd v National Director of Public Prosecutions and Others; Zuma v National
Director of Public Prosecutions and Others 2009 (1) SA 1 (CC)
23 Thint Holdings (Southern Africa) (Pty) Ltd and Another v National Director of Public
Prosecutions; Zuma v National Director of Public Prosecutions 2009 (1) SA 141 (CC)
24 Zuma v National Director of Public Prosecutions [2009] 1 All SA 54 (N)
25 National Director of Public Prosecutions v Zuma 2009 (2) SA 277 (SCA)
13
him be withdrawn. These included allegations of political meddling in the
timing of the service of the indictment on him in December 2007. These
allegations were mainly based on the ‘Spy Tapes’, which were secretly
recorded telephone conversations including ones between Mr McCarthy
(the then head of the DSO) and Mr Ngcuka (the former NDPP and a
supporter of Mr Zuma’s rival for the presidency of the ruling African National
Congress at its mid-December 2007 elective conference in Polokwane, then
President Mbeki).
46. On 6 April 2009 Mr Mpshe accepted Mr Zuma’s representations. He
decided to withdraw the charges against Mr Zuma, and against Thales and
Thint.
47. On 7 April 2009 the State formally withdrew the charges against Mr Zuma,
Thales and Thint. On the same day the Democratic Alliance applied in the
Pretoria High Court for judicial review of Mr Mpshe’s decision to withdraw
the charges against Mr Zuma. It did not challenge Mr Mpshe’s decision to
withdraw the charges against Thales and Thint. The respondents cited by
the DA were the Acting NDPP, the Head of the DSO and Mr Zuma.
48. On 31 March 2015 Mr Hofmeyr, a Deputy NDPP, made the main answering
affidavit for the NPA in the Spy Tapes matter. 26
49. On 2 June 2015 Mr Downer made an affidavit in the Spy Tapes matter in
which he dealt with the contents of Mr Hofmeyr’s affidavit for the NDPP
26 Hofmeyr affidavit (stay), pp 155-308

14
insofar as they related to him and on 11 June 2015 the finalised affidavit
was filed by the State Attorney representing the NPA. 27
50. On 13 October 2017 the SCA upheld a decision of a Full Court in the
Pretoria High Court reviewing and setting aside Mr Mpshe’s decision to
withdraw the charges against Mr Zuma, finding that the decision was
unlawful and irrational. 28 Neither the NPA nor Mr Zuma applied to the CC
for leave to appeal against the SCA’s decision, which is therefore final and
binding on the parties to that litigation (including Mr Zuma and the NPA).
As a result of the SCA’s decision, the criminal proceedings against Mr Zuma
(but not Thales and Thint) were reinstated.
51. On 16 March 2018 Mr Abrahams, the NDPP, announced his decision not to
accede to new representations by Mr Zuma that the prosecution be
stopped. He also announced that Thales and Thint would be re-charged
and tried together with Mr Zuma.
52. On 6 April 2018 Mr Zuma and Thales appeared in this Court. (Thint did not
appear because, at some point between April 2009 and March 2018, it had
been deregistered.)
53. Thereafter the matter was postponed several times in this Court to allow
Thales to make representations (which were refused on 25 July 2018) and
to allow Mr Zuma and Thales to bring proceedings for a permanent stay of
their prosecutions, which they duly did in November 2018.
27 Downer affidavit (Spy Tapes), pp 3416-3435

28 Zuma v Democratic Alliance and Others; Acting National Director of Public Prosecutions
and Another v Democratic Alliance and Another 2018 (1) SA 200 (SCA) (‘Spy Tapes SCA’)
15
54. On 11 March 2019 the State delivered comprehensive answering affidavits
in both applications. Mr Downer was the main deponent. His answering
affidavits were accompanied by detailed affidavits by Mr Ngcuka,29
Mr Pikoli 30 and Mr Abrahams, 31 and a confirmatory affidavit by Col Johan
du Plooy of the Directorate for Priority Crime Investigation in the South
African Police Service, who was previously a Senior Special Investigator in
the DSO and the lead investigator in the DSO team in the investigations
which culminated in the prosecution of the present accused. Mr Mpshe and
Mr McCarthy refused to consult with the State.
55. On 20, 21, 23 and 24 May 2019 a Full Court heard oral argument on the
permanent stay applications brought by Mr Zuma and Thales, and a related
application by Thales for judicial review of Mr Abrahams’ decision to
reinstitute the prosecution against it.
56. On 11 October 2019 the Full Court handed down its judgment dismissing
all the applications. 32
57. On 1 November 2019 Thales applied in the CC for leave to appeal directly
against the Full Court’s dismissal of its applications, but in its replying
affidavit, Thales abandoned its attempt to appeal against the dismissal of
the permanent stay application. It did so because it accepted that its
allegations of delay-induced trial prejudice could be dealt with by the
criminal trial court if the trial goes ahead.
29 Ngcuka affidavit, pp 2402-2438

30 Pikoli affidavit, pp 2439-2547
31 Abrahams affidavit, pp 2548-2593
32 S v Zuma and Another; Thales South Africa (Pty) Limited v KwaZulu-Natal Director of
Public Prosecutions and Others [2019] 4 All SA 845 (KZD)
16
58. On 29 November 2019 the Full Court dismissed an application by Mr Zuma
for leave to appeal to the SCA. The Full Court also dismissed a conditional
application by Thales for leave to appeal to the SCA (limited to the judicial
review of Mr Abraham’s decision), Thales’ condition being the dismissal by
the CC of its application for leave to appeal directly to it referred to in the
preceding paragraph.
59. On 23 December 2019 Mr Zuma and Thales brought applications in the
SCA for leave to appeal. Mr Zuma applied for leave to appeal against the
Full Court’s dismissal of his application for a permanent stay of prosecution
and its dismissal of his interlocutory application for the admission of certain
documents as evidence in the stay of prosecution proceedings. As it did
before the Full Court, Thales brought an application, on the same condition
as before, for leave to the appeal to the SCA against the Full Court’s
dismissal of its application for judicial review of Mr Abraham’s decision.
60. On 10 March 2020 the SCA dismissed both Mr Zuma’s and Thales’
applications for leave to appeal to it on the grounds that they lacked
reasonable prospects of success and there was no other compelling reason
why an appeal should be heard.
61. On 26 March 2020 Mr Zuma applied in the CC for leave to appeal against
the Full Court’s dismissal of his application for a permanent stay of
prosecution.
62. On 2 April 2020 Thales served on the State (a) a notice withdrawing its
application for leave to appeal directly to the CC against the Full Court’s
dismissal of its application for judicial review of Mr Abrahams’ decision to

17
reinstitute the prosecution against it and (b) papers in a fresh application for
leave to appeal to the CC against that decision by the Full Court. The latter
application, based as it was on the dismissals by the Full Court and the SCA
of its applications for leave to appeal, was not one for leave to appeal
directly to the CC.
63. On 22 April 2020 Mr Zuma withdrew his application for leave to appeal to
the CC against the Full Court’s dismissal of his application for a permanent
stay of prosecution and tendered the State’s costs.
64. On 22 April 2020 Mr Zuma withdrew his application for leave to appeal to
the CC against the Full Court’s dismissal of his application for a permanent
stay of prosecution and tendered the State’s costs. As a result, the Full
Court’s decision is final and binding on Mr Zuma and the State.
65. On 22 June 2020 Thales withdrew its application for leave to appeal to the
CC against the Full Court’s dismissal of its application for judicial review of
Mr Abrahams’ decision to reinstitute the prosecution against it and tendered
the State’s costs.
66. On 26 June 2020 Thales applied in this Court for relief aimed at avoiding it
being tried on the charge of racketeering in contravention of section 2(1)(e)
of the Prevention of Organised Crime Act 121 of 1998 in the present
prosecution.
18
67. On 22 January 2021 a Full Court (per Bezuidenhout AJ, Van Zyl and Chetty
JJ concurring) dismissed that application. 33 Thales has not sought leave to
appeal.
68. On 26 May 2021, when the charges were put to the accused, Mr Zuma
pleaded not guilty and raised the special plea under ss 106(1)(h) and (4) of
the CPA.
33 Thales South Africa (Pty) Ltd v National Director of Public Prosecutions N.O and Others
[2021] 2 All SA 274 (KZP)
19
THE LAW
Section 106(1)(h)
69. Section 179(1), (2) and (4) of the Constitution provides:
‘(1) There is a single national prosecuting authority in the Republic,
structured in terms of an Act of Parliament, and consisting of-
(a) a National Director of Public Prosecutions, who is the head of the
prosecuting authority, and is appointed by the President, as head of
the national executive; and
(b) Directors of Public Prosecutions and prosecutors as determined by
an Act of Parliament.
(2) The prosecuting authority has the power to institute criminal proceedings
on behalf of the state, and to carry out any necessary functions incidental
to instituting criminal proceedings.’
‘(4) National legislation must ensure that the prosecuting authority exercises
its functions without fear, favour or prejudice.’
70. The Act of Parliament and national legislation envisaged by section 179(1)
and (4) is the NPA Act.
71. Section 2 of the NPA Act provides that the NPA is the single national
prosecuting authority established in terms of section 179 of the Constitution.
72. Section 4 of the NPA Act provides that the NPA comprises the NDPP,
Deputy NDPPs, DPPs, Deputy DPPs and prosecutors.

20
73. Section 20(1) of the NPA Act provides:
‘The power, as contemplated in section 179(2) and all other relevant
sections of the Constitution, to-
(a) institute and conduct criminal proceedings on behalf of the State;
(b) carry out any necessary functions incidental to instituting and
conducting such criminal proceedings; and
(c) discontinue criminal proceedings,
vests in the prosecuting authority and shall, for all purposes, be exercised
on behalf of the Republic.’
74. Section 32(1)(a) of the NPA Act provides:
‘A member of the prosecuting authority shall serve impartially and exercise,
carry out or perform his or her powers, duties and functions in good faith
and without fear, favour or prejudice and subject only to the Constitution
and the law.’
75. Section 106(1)(h) of the CPA provides:
‘When an accused pleads to a charge he may plead- … that the prosecutor
has no title to prosecute.’
76. In Ndluli the Appellate Division held that in a case of a prosecution at the
instance of the State, like the present, the word ‘prosecutor’ in section
106(1)(h) refers not to the State but to the person who acts as prosecutor
in the court; 34 and the objection in a special plea under section 106(1)(h) is
34 Ndluli v Wilken NO en Andere 1991 (1) SA 297 (A) (‘Ndluli’) 305H-306C

21
an objection, not to the right or power of the State to prosecute the accused,
but to the right or power of that person to act as prosecutor in the case. 35
77. In Porritt the SCA held that a special plea under section 106(1)(h) does not
avail an accused who believes the retention of a person as the prosecutor
would infringe their right to a fair trial entrenched in section 35(3) of the
Constitution, for example because the accused believes the prosecutor is
biased. The reason is the removal of a prosecutor on that ground is not
based on the prosecutor’s lack of title to prosecute. 36
78. As explained more fully below when dealing with our law on prosecutorial
independence, in Porritt the SCA further held that the protection of an
accused person lies not in a general standard of independence and
impartiality required of all prosecutors, but in the right to a fair trial
entrenched in section 35(3) of the Constitution. 37
79. In Moussa, citing this finding in Porritt, the SCA held that whether a trial is
fair usually falls to be determined on a case-by-case basis, and stressed
that our courts will be astute to ensure that the constitutional guarantees of
prosecutions without fear, favour or prejudice, and fair-trial rights, are met. 38
80. An accused who believes the conduct of a prosecution by a particular
prosecutor will violate their right to a fair trial entrenched in section 35(3) of
35 Ndluli 306F-H
36 Porritt and Another v National Director of Public Prosecutions and Others 2015 (1) SACR
533 (SCA) (‘Porritt’) paras 7-8
37 Porritt para 14
38 Moussa v The State and Another 2015 (2) SACR 537 (SCA) para 29
22
the Constitution, may apply to the court for the prosecutor’s removal and
base that application on section 35(3).
81. It follows, we submit, that there is no need to interpret s 106(1)(h) more
broadly than the SCA did in Porritt (something which is not open to this
Court, in any event).
Section 106(4)
82. Section 106(4) provides:
‘An accused who pleads to a charge, other than a plea that the court has
no jurisdiction to try the offence, or an accused on behalf of whom a plea of
not guilty is entered by the court, shall, save as is otherwise expressly
provided by this Act or any other law, be entitled to demand that he be
acquitted or be convicted.’
83. In Porritt the SCA held it is doubtful whether a successful plea in terms of
section 106(1)(h), where an accused has not pleaded on the merits of the
matter, entitles the accused to an acquittal. 39
84. In Delport the SCA held that, assuming the accused were entitled to invoke
s 106(1)(h) midway through their trial, it does not follow that, if the plea is
successful, the accused is entitled to demand an acquittal in terms of
s 106(4). The purpose of s 106(4) is to prevent trial proceedings from
hanging over the head of an accused indefinitely after he has pleaded. If
s 106(4) could be invoked where the trial is underway, that would cause
39 Porritt para 9
23
immense prejudice to the prosecution and allow an unscrupulous accused
to use it for purposes other than those for which it was intended. 40
85. We submit that, what s 106(4) does, in circumstances where the trial is
underway, is entitle the accused to demand that the trial proceed to its
conclusion, whereupon the court must either convict or acquit the accused.
Prosecutorial independence
86. In Porritt the SCA dealt with the test for the removal of a prosecutor. The
SCA’s findings include the following.
87. First, there is a fundamental difference between the role and functions of a
prosecutor as opposed to those of a magistrate or a judge. The judiciary is
held to the highest standards of independence and impartiality because
they are the decision-makers in an adversarial judicial system. Prosecutors
neither make the final decision on whether to acquit or convict, nor on
whether evidence is admissible or not. 41
88. Second, the principles that govern prosecutorial conduct must be seen and
understood in the context of the role that prosecutors play. 42
89. Third, in an adversarial system such as ours a prosecutor’s function is to
place before a court what the prosecution considers to be credible evidence
relevant to what is alleged to be a crime. 43 It is not the function of a
prosecutor disinterestedly to place a hotchpotch of contradictory evidence
40 S v Delport and Others 2015 (1) SACR 620 (SCA) paras 30-34
41 Porritt para 11
42 Porritt para 13
43 Porritt para 11
24
before a court, and then leave the court to make of it what it will. On the
contrary, it is the obligation of a prosecutor firmly, but fairly and
dispassionately, to construct and present a case from what appears to be
credible evidence, and to challenge the evidence of the accused and other
defence witnesses, with a view to discrediting such evidence, for the very
purpose of obtaining a conviction. That is the essence of a prosecutor's
function in an adversarial system such as ours. 44
90. Fourth, in adversarial criminal proceedings such as ours, it is inevitable that
prosecutors will be partisan. They conduct the case for one of the two sides
in an adversarial trial, namely the State, as representing the citizenry. They
often carry out their prosecutorial functions vigorously and zealously. A
prosecutor’s role in a criminal prosecution therefore makes it inevitable that
he or she would be perceived to be biased. Prosecutors usually approach
criminal prosecutions with a view, sometimes a very strong view, that
accused persons are guilty. That is permissible, subject to the caveat that
they must not prosecute in single-minded pursuit of a conviction. 45
91. Fifth, prosecutors have a duty towards the accused to ensure that an
innocent person is not convicted. In this regard, they have a duty to
disclose, in certain circumstances, facts harmful to their own case. 46
92. Sixth, the protection of an accused person, therefore, lies not in a general
standard of independence and impartiality required of all prosecutors, but
44 S v Van Der Westhuizen 2011 (2) SACR 26 (SCA) para 11, quoted in Porritt para 13
45 Porritt para 13
46 Porritt para 13
25
in the right to a fair trial entrenched in section 35(3) of the Constitution.47
However, fairness is not a one-way street conferring an unlimited right on
an accused to demand the most favourable possible treatment. A fair trial
also requires fairness to the public as represented by the State. It has to
instil confidence in the criminal justice system with the public, including
those close to the accused, as well as those distressed by the audacity and
horror of crime. 48
93. Seventh, where a prosecutor’s bias affects the accused’s right to a fair trial,
the prosecutor may well be disqualified. The removal of a prosecutor will
be required where the facts instil a belief that if the case were to remain in
his hands there is, at the very least, a real risk that he will not conduct the
trial with due regard to the basic rights and dignity of the accused. 49
47 Porritt para 14
48 S v Shaik and Others 2008 (2) SA 208 (CC) para 43, quoted in Porritt para 13
49 Smyth v Ushewokunze and Another 1998 (3) SA 1125 (ZS) 1132A to 1134B, discussed
and quoted in Porritt para 17
26
SECTION 106(1)(h) IS NOT APPLICABLE 50
94. Mr Downer’s uncontested evidence is that:
94.1. He was admitted as an advocate of the Supreme Court of South
Africa on 15 April 1980, appointed a Deputy DPP in the NPA with
effect from 1 February 1999, elevated to the rank of senior counsel
on 21 November 2003 and sworn in as a Senior Deputy Director of
Public Prosecutions in the NPA on 6 August 2015. 51
94.2. On 28 November 2017 he was designated by the then DPP to
exercise, on behalf of the Republic, in all courts within her area of
jurisdiction, the powers mentioned in sections 20(1)(a), (b) and (c) of
the NPA Act in respect of the prosecution of the present accused,
from that date until the finalisation of the case, and he has again been
so designated by the current DPP. 52
95. In paragraphs 1 to 3 of his special plea 53 Mr Zuma contends that Mr Downer
has no title to prosecute as envisaged in section 106(1)(h) and should be
removed as the prosecutor in this case on two grounds:
95.1. First, he has a reasonable apprehension that Mr Downer lacks the
independence and impartiality necessary for a lawful prosecution,
more specifically to ensure that his trial is fair and is conducted in
accordance with the Constitution and the common law.
50 Answering affidavit, pp 1456-1458 paras 7-12

51 Answering affidavit, p 1455 para 4
52 Answering affidavit, pp 1455-1456 para 5; annexures BD 1(a) and BD 1(b), pp 1608-1610
53 Pages 1-3
27
95.2. Second, Mr Downer is an essential witness on the issue of whether
there was political interference in the prosecution which has violated
his right to a fair trial in section 35 of the Constitution.
96. Mr Zuma does not impugn Mr Downer’s admission as an advocate, or his
appointments as a Deputy DPP and a Senior Deputy DPP or his designation
by the DPP to conduct this prosecution on behalf of the State.
97. Instead, Mr Zuma relies on contraventions of his rights and especially his
right to a fair trial which he alleges will ensue if Mr Downer is to conduct the
prosecution for the State; and, further, on his allegation that Mr Downer will
be an essential witness on the issue of whether his right to a fair trial has
been violated.
98. We submit it follows from the findings in Porritt 54 that, if an accused believes
the prosecutor assigned to their case will not exercise, carry out or perform
their powers, duties and functions in good faith, impartially and without fear,
favour or prejudice, or that the prosecutor is an essential witness in the
case, then the accused may bring an application to the Court for an order
that the prosecutor be removed and replaced. What the accused may not
do, however, is seek such removal by the device of a special plea in terms
of section 106(1)(h) of the CPA.
99. In the premises, we submit, Mr Zuma’s special plea is not based on
Mr Downer’s lack of title to prosecute as envisaged in section 106(1)(h).
For this reason alone, the special plea falls to be dismissed and Mr Zuma
54 Porritt paras 7-8

28
is not entitled to demand an acquittal in terms of section 106(4) on the basis
of the special plea.

29
MR ZUMA’S COMPLAINTS
100. In this chapter we address each of Mr Zuma’s complaints in turn. When
doing so, in addition to addressing their merits, we show that in most
instances the issue has already been decided by the SCA in the Spy Tapes
matter and by the Full Court in his application for a permanent stay of
prosecution. Mr Zuma and the State were among the parties in the Spy
Tapes matter. Mr Zuma and the State were the only parties in his
application for a permanent stay of prosecution.
101. The doctrine of issue estoppel allows a court to dispense with the two
requirements for res judicata of same cause of action and same relief, in
cases where the same issue has been finally decided in previous litigation
between the same parties. 55
102. We submit the relevant findings of the SCA in the Spy Tapes matter,
referred to below, are binding upon him on the basis of the doctrine of issue
estoppel; and, consequently, he is precluded from raising those issues
again in the present matter.
Mr Ngcuka’s refusal to authorise searches of Mr Zuma’s properties
103. Mr Zuma alleges Mr Downer denounced the refusal by Mr Ngcuka, to
authorise searches of Mr Zuma’s properties, as a political favour to Mr
55 Prinsloo NO and Others v Goldex 15 (Pty) Ltd and Another 2014 (5) SA 297 (SCA) para
23
30
Zuma, 56 but failed to report Mr Ngcuka’s unlawful conduct or to lodge a
formal complaint about it. 57
104. The allegations that Mr Downer denounced Mr Ngcuka’s decision as a
political favour to Mr Zuma and that Mr Ngcuka’s decision was unlawful, are
incorrect.
105. As Mr Downer explains, 58 while it is correct that in late 2001 the prosecution
team recommended that Mr Zuma’s premises be searched but this was not
approved by Mr Ngcuka and Mr McCarthy, Mr Downer did not denounce
that decision as a political favour to him. Nor was the decision unlawful.
106. What Mr Downer said was he believed that Mr Ngcuka’s refusal to authorise
the prosecution team to search Mr Zuma’s premises was politically
motivated and designed to protect Mr Zuma. 59
107. Mr Ngcuka and Mr McCarthy however disagreed, saying it was necessary
to avoid the harm which media exposure might cause both to the integrity
of the investigation and to the credibility of Mr Zuma, who was then the
incumbent Deputy President of the Republic. The context was the DSO’s
investigation was still in a relatively early stage.
Mr Ngcuka’s decision not to prosecute Mr Zuma
108. Mr Zuma alleges his constitutional rights to a fair trial were violated by
Mr Ngcuka when he (Mr Ngcuka) decided not to charge Mr Zuma together
56 Plea explanation, p 76 para 154

59 Downer affidavit (Spy Tapes), p 3422 para 17
31
with Mr Shaik and announced his decision publicly on 23 August 2003
saying, although there was prima facie evidence of wrong-doing by
Mr Zuma, the case against him was unwinnable in court. 60
109. Mr Zuma further alleges that Mr Downer’s insistence that Mr Zuma face
prosecution now, is not consistent with his advice to Mr Ngcuka in August
2003 that Mr Zuma should be prosecuted together with Mr Shaik and shows
that he (Mr Downer) is not independent and impartial. 61
110. It is not correct that Mr Zuma’s constitutional rights to a fair trial were
violated by Mr Ngcuka when he decided not to charge Mr Zuma together
with Mr Shaik and announced his decision publicly on 23 August 2003.
Mr Zuma’s contentions were refuted in Mr Downer’s answering affidavit in
his application for a permanent stay of prosecution 62 and in Mr Ngcuka’s
affidavit in that application. 63
111. The Full Court dealt with and rejected Mr Zuma’s allegations. 64 We refer in
particular to the following findings of the Full Court, which we respectfully
submit are compelling:
‘[131] Counsel for Mr Zuma submitted that a prosecutor is obliged to
prosecute whenever he has a prima facie case. He submitted that the
Ngcuka decision in this regard was not consistent with the Constitution, the
NPA Act and the prosecution policy directives, code of conduct or any
60 Plea explanation, pp 29-30 para 37

63 Ngcuka affidavit, pp 2413-2424 paras 39-61
64 Full Court Judgment paras 126-133
32
prosecution standard. The difficulty with this proposition is that the
legitimacy of the test, which Mr Ngcuka applied, was confirmed by Harms
DP in National Director of Public Prosecutions v Zuma 65 when he concluded
pertinently that:
“. . .the term “prima facie evidence” has more than one connotation
and may mean, as Mr Ngcuka conveyed, that there may be evidence
of the commission of a crime which is nonetheless insufficient to
satisfy the threshold of a reasonable prospect of success, especially
if regard is had to the burden of proof in a criminal case. Although
corruption involves two persons, the fact that the one may be guilty
does not mean that the other is also guilty because the intention of
each party must be decided separately, and evidence that may be
admissible against the one may not be admissible against the other.”
(Footnotes omitted.)
[132] This reasoning commends itself to us as applying equally in this
matter. Counsel for Mr Zuma had another arrow in his quiver. He contended
that the decision was not taken to advance a legitimate prosecutorial
principle but was part and parcel of a grand political scheme to keep
Mr Zuma in the public controversy where he would be regarded as being a
corrupt leader without affording him a legitimate constitutional platform to
deal with those allegations. In support of this submission, he relied on
Mr Ngcuka’s declaration that he was a political supporter of Mr Mbeki in the
run up to the ANC Polokwane conference and that at the time he was in
65 National Director of Public Prosecutions v Zuma 2009 (2) SA 277 (SCA) para 43
33
regular contact with some senior ANC members and supporters. We find
this argument fundamentally flawed. The flaw seems to lie in the fact that
the uncontested evidence of Mr Ngcuka was that in the indictment of
Mr Shaik and his co-accused, which was about to become public, reference
was of necessity made to Mr Shaik’s relationship with Mr Zuma and the
bribe agreement with Mr Thétard. The indictment spelt out what was clearly
a prima facie case of corruption against Mr Zuma. Mr Ngcuka felt obliged to
explain to the public why he had decided not to prosecute Mr Zuma despite
the prima facie case disclosed by the indictment to avoid an inference that
Mr Zuma was receiving special treatment. Therefore, his relationship with
Mr Mbeki or being his supporter was immaterial as the prima facie evidence
of corruption was there regardless.
[133] Mr Zuma contends that he should have been prosecuted with
Mr Shaik and that it was unfair to deprive him of the benefits of such a joint
prosecution. We observe that a similar complaint was raised by Mr Shaik in
his appeal against the conviction to the CC. 66 In rejecting this complaint, the
CC held that the fact that there might often be cogent reasons for the holding
of joint trials, does not of course mean that a specific trial would be unfair
because other possible perpetrators are not charged together with an
accused. The CC further held that the proposition cannot be upheld that the
failure to charge another party, who may be suspected of being involved in
the same offence, in the same trial together with an accused amounts to a
breach of any established rule of criminal procedure. 67 As we see it, even if
66 S v Shaik & others 2008 (2) SA 208 (CC) para 47.

67 S v Shaik & others above para 50.
34
a joint trial would have had some benefit for Mr Zuma of which he was
deprived of as a result of his prosecution being separated from Mr Shaik
and the Nkobi group, it does not constitute prejudice of any kind, which
would impact on the fairness of his trial. Any delay during this period would
be justifiable if one has regard to Mr Ngcuka’s explanation and the fact that
the investigations were ongoing.’
112. Moreover, and in any event, we point out that Mr Zuma’s allegations
concerning Mr Ngcuka’s decision and his announcement of it on 23 August
2003 are not relevant to Mr Downer or to his role as the prosecutor in this
matter.
113. Finally, while Mr Zuma is right in saying that Mr Downer and the other
members of the investigation team have consistently said that Mr Zuma
should be prosecuted – they did so both before and after Mr Ngcuka
decided not to prosecute Mr Zuma together with Mr Shaik – that does not
mean Mr Downer is not independent and impartial. The fact that Mr Downer
believes Mr Zuma should have been prosecuted earlier and that he believes
that it is right that Mr Zuma is being prosecuted, does not reflect adversely
on his independence and impartiality as a prosecutor.
Mr Downer’s dismissal of the Public Protector’s report
114. Mr Zuma alleges that Mr Downer has a ‘dismissive attitude’ towards and
ignores the finding by the Public Protector that Mr Ngcuka had violated his
rights making the media statement on 23 August 2003 to the effect that he
would not be prosecuted despite there being a prima facie case against
35
him. 68 He adds that Mr Downer knows that the Public Protector’s remedial
actions were never implemented.
115. These allegations are directed at the passage in Mr Downer’s answering
affidavit in Mr Zuma’s stay of prosecution application dealing with the Public
Protector’s report of 28 May 2004.
116. It is clear from that passage that the ‘dismissive attitude’ allegation is untrue.
The passage reads as follows: 69
‘On 30 October 2003 Zuma lodged with the Public Protector a complaint
about the manner in which the NPA had conducted the investigation into
him. This culminated in a report by the Public Protector on 28 May 2004,
the findings of which included that Ngcuka had unjustifiably infringed
Zuma’s right to dignity and acted unfairly and improperly in making the
media statement on 23 August 2003 to the effect that Zuma would not be
prosecuted despite there being a prima facie case against him. As Ngcuka
points out in paragraph 62 of his affidavit, 70 however, the Public Protector
also said that “no indication could be found that the statement was made in
bad faith or with the intent to prejudice the Deputy President”. As the
complaint and the report are both lengthy and are already annexures ‘JZ16’
and ‘JZ17’ to Zuma’s founding affidavit and the Public Protector’s findings
and opinions are not relevant or admissible in the present proceedings,
I shall not deal with them. For the present, suffice it to say that shortly after
68 Plea explanation, pp 13-14 paras 8.14 to 8.15; see also pp 42-43 para 65, p 106 para 223
and p 117 para 249
69 Answering affidavit, pp 1508 para 60.2, quoting Downer affidavit (stay) p 2089 para 173
70 Ngcuka affidavit, p 2424 para 62
36
the Public Protector delivered his report the NPA and [the then Minister of
Justice, Dr Penuell] Maduna prepared a response rejecting his criticisms of
its handling of the investigation and explaining why Ngcuka had made the
prima facie but not winnable case statement at the media conference on
23 August 2003. If requested by the Court the NPA will deliver copies of
that response to the Court and the accused. The relevant facts are set out
in this affidavit and in Ngcuka’s affidavit.’
117. Finally, we point out that, as Mr Downer explains, 71 the remedial action
recommended by the Public Protector 72 was directed to Parliament; and,
further, that, as appears from Mr Ngcuka’s affidavit in Mr Zuma’s application
for a permanent stay of his prosecution, 73 shortly after the Public Protector
delivered his report Dr Maduna and Mr Ngcuka tried to submit their
response to Parliament but it would not accept the response.
Mr Downer’s conduct in the Shaik trial
118. Mr Zuma alleges that Mr Downer violated his right to equality and equal
protection of the law and his fair trial rights by presenting evidence in the
Shaik trial which resulted in adverse findings by Squires J against him; and,
further, that Mr Downer’s strategy was to prosecute Mr Shaik alone as a
trial run to bolster his chances of successfully prosecuting Mr Zuma, and Mr
Downer says so in his memorandum on whether Mr Zuma should be
charged addressed to Mr Pikoli after Mr Shaik’s conviction. 74

72 Public Protector’s report, p 499 para 25
73 Ngcuka affidavit, p 2024-25 para 63
74 Plea explanation, p 15 para 8.16, p 53 paras 95-96 and p 118 paras 252-253
37
119. There is no merit in these allegations.
120. Count 1 in the Shaik trial was a charge that Mr Shaik and his Nkobi
companies were guilty of corruption in contravention of section 1(1)(a) of
the Corruption Act 94 of 1992, in that they had made regular corrupt
payments to Mr Zuma that extended over a period of some seven years
between 1995 and 2002. Mr Zuma was at various times during this period
a member of the provincial cabinet in KwaZulu-Natal, a Member of
Parliament, the Deputy President of the ruling ANC and the Deputy
President of the Republic. The Trial Court found that there were various
instances where Mr Zuma had used his official position to assist Mr Shaik’s
businesses over the years when he was receiving payments. 75
121. Count 3 in the Shaik trial was a charge of corruption in contravention of
section 1(1)(a) of the Corruption Act, in that Mr Shaik had been party to a
request that Thales should pay an annual R500 000 bribe to Mr Zuma in
order to secure protection from Mr Zuma against the then current official
investigations concerning the arms deal and to secure the support of
Mr Zuma for Thales’ future projects in South Africa. 76
122. As Mr Downer explains, 77 the prosecution team presented the evidence in
the Shaik trial which it considered necessary and appropriate. The Shaik
trial court accepted the bulk of the State’s evidence and convicted Mr Shaik
and his Nkobi companies as charged, including on Counts 1 and 3. Given
those counts, it was inevitable that the State’s evidence would implicate Mr
75 Downer affidavit (stay), p 2102 para 205.1

76 Downer affidavit (stay), p 2102 para 205.3
38
Zuma in the acts of corruption with which Mr Shaik and his Nkobi companies
were charged and it was inevitable that if the trial court accepted that
evidence it would make findings adverse to the present first accused.
123. In any event, as appears from paragraph 111 above, Mr Zuma’s argument
that he should have been prosecuted with Mr Shaik and that it was unfair to
deprive him of the benefits of such a joint prosecution was dealt with and
rejected in the Full Court’s judgment. 78
124. It is not true that it was Mr Downer’s strategy to prosecute Mr Shaik alone,
and the Shaik trial was a trial run aimed at bolstering his chances of
successfully prosecuting Mr Zuma. Nor is it true that Mr Downer said that
in his memorandum on whether Mr Zuma should be charged addressed to
Mr Pikoli after Mr Shaik’s conviction. 79
125. On the contrary, as Mr Downer explains in his answering affidavit, 80 his view
and that of the prosecution team has always been that Mr Zuma should
have been charged together with Mr Shaik and they said as much in their
memorandum to the NDPP on 21 August 2003 81 (something which
Mr Zuma himself acknowledges elsewhere in his plea explanation 82).
Indeed, when announcing his decision on 23 August 2003, Mr Ngcuka, to
his credit, said: ‘The investigating team recommended that we institute a
prosecution against Deputy President Zuma’. 83
78 Full Court Judgment para 133

79 Prosecution team memo 16 June 2005, pp 3444-3533
81 Prosecution team memo 21 August 2003, pp 3581-3694
83 Ngcuka media announcement 23 August 2003, p 1206 para 31
39
Nicholson J’s findings of political interference
126. In his plea explanation, 84 Mr Zuma quotes extensively from the judgment of
Nicholson J on 12 September 2008 upholding his application to have
Mr Mpshe’s December 2007 decision to re-charge him set aside for want of
compliance with section 179(5)(d) of the Constitution. 85 Much of these
paragraphs are a repetition of the argument in Mr Zuma’s heads of
argument in his application for a permanent stay of prosecution. 86
127. But Nicholson J’s findings of political interference were overturned on
appeal by the SCA, which strongly criticised Nicholson J for making those
findings87 and held that the allegations by Mr Zuma on which they were
based were irrelevant, gratuitous and based on suspicion and not on fact
and fell to be struck out. 88
128. In any event, Nicholson J’s judgment does not criticise Mr Downer or his
conduct in any respect. None of Nicholson J’s findings of political
interference related to Mr Downer or his conduct. In fact, the only mention
of Mr Downer in the judgment is in paragraph 6, where it is recorded that he
was part of the team of counsel representing the NDPP at the hearing of
the matter before him.
84 Plea explanation, pp 126-133 paras 265-276

86 Mr Zuma’s heads of argument (stay), pp 2862 paras 5.15.1 to 5.15.11
87 National Director of Public Prosecutions v Zuma 2009 (2) SA 277 (SCA) paras 13-27 and
40-54
88 Paras 81-82
40
Mr Mpshe’s April 2009 decision and Mr Hofmeyr’s affidavit
129. Mr Zuma places heavy emphasis on the events in late 2007 involving
Mr McCarthy and Mr Ngcuka on which Mr Mpshe based and announced his
April 2009 decision to discontinue Mr Zuma’s prosecution, and on which
Mr Hofmeyr relied in his affidavit for the NPA in the ensuing Spy Tapes
matter. 89
130. Mr Zuma also relies 90 on those and other more wide-ranging allegations of
political interference in Mr Hofmeyr’s affidavit in the Spy Tapes matter91 and
Mr Mpshe’s supplementary affidavit supporting Mr Hofmeyr’s affidavit. 92
131. The factual background is explained earlier. To recap:
131.1. On 28 December 2007, when Mr Mpshe was the Acting NDPP,
Mr Zuma, Thales and Thint were re-charged.
131.2. In February and March 2009, Mr Zuma made representations to the
NPA that the charges against him be withdrawn. These included
allegations of political meddling in the timing of the service of the
indictment on him in December 2007. These allegations were mainly
based on secretly recorded telephone conversations between
Mr McCarthy and Mr Ngcuka in the run-up to the ruling ANC’s mid-
December 2007 elective conference in Polokwane where Mr Zuma
would be challenging Mr Mbeki for the leadership of the ANC.
89 Special plea, p 2 para 3

90 Special plea, p 2 para 3; plea explanation, p 78 paras 159-160, p- 100 paras 200-229, p
131 paras 272-273 and p 135 para 282
92 Mpshe supplementary affidavit (stay), pp 142-154
41
131.3. On 6 April 2009 Mr Mpshe accepted Mr Zuma’s representations. He
withdrew the charges against Mr Zuma, Thales and Thint.
131.4. The DA instituted proceedings for judicial review of Mr Mpshe’s
decision.
131.5. Mr Hofmeyr made the main answering affidavit for the NPA in those
proceedings.
132. On 13 October 2017, the SCA upheld the decision of a Full Court in the
Pretoria High Court reviewing and setting aside Mr Mpshe’s decision to
withdraw the charges against Mr Zuma, holding that the decision was
unlawful and irrational. The SCA delivered a detailed judgment setting out
its reasons for that finding, even though, at the hearing in the SCA on 14
September 2017, Mr Zuma’s counsel had conceded that Mr Mpshe’s
decision was unlawful and irrational. 93
133. The SCA’s findings included the following:
133.1. ‘On 20 February 2009, 10 days after they had made written
representations, Mr Zuma’s legal representatives, attorney Michael
Hulley and his counsel Mr Kemp J Kemp SC, made oral
representations to the NPA’. 94
133.2. ‘Hulley disclosed that he was in possession of recordings of
[telephone] conversations between McCarthy and various
politicians, including Ngcuka, Mzi Khumalo (a close friend of
93 Spy Tapes SCA para 60

42
Ngcuka) and Ronnie Kasrils (Minister of Intelligence at the time).
He maintained that the recordings proved that McCarthy
manipulated the timing of the decision to charge Zuma and that he
had deliberately delayed the decision until after Polokwane with one
purpose in mind: to undermine Zuma’s chances of being elected as
ANC President at Polokwane. Following Zuma’s election and
Mbeki’s defeat, McCarthy had moved with haste to charge Zuma’. 95
133.3. ‘On 9 March 2009 Mr Hofmeyr and Mr Mzinyathi [a Deputy Director
of Public Prosecutions], instructed by Mr Mpshe, met with Mr Hulley
and listened to the recordings of the telephone conversations … in
Mr Hofmeyr’s office and made notes of what they had heard.
Mr Hofmeyr specifically enquired of Mr Hulley whether any member
of the prosecution team, excepting Mr McCarthy, was implicated in
any campaign against or wrong-doing in relation to the prosecution
of Mr Zuma. The answer was in the negative’. 96
133.4. ‘Insofar as the tape recordings of the telephone conversations are
concerned, other than the hearsay evidence of the communications
between the members of the NIA and the NPA, we have no
admissible substantiation concerning the authenticity or accuracy of
the recordings. The alleged judge’s certificate, which would have
indicated the breadth of the authorisation to record telephone
conversations, was not made available to the court below or to us’. 97
95 Spy Tapes SCA para 12, quoting Hofmeyr affidavit (stay), pp 229 paras 243-244
43
133.5. ‘There is no indication of how the recordings came to be in the
possession of Mr Zuma’s legal team. There are heavy penalties
prescribed in relation to contraventions of the Act including those
related to the prohibition against disclosure. The question of the
admissibility of the recordings as evidence and the issues referred
to above was never seriously addressed by the NPA. It ought to
have been an issue to which the NPA paid greater and focused
attention. Instead, the NPA allowed itself to be cowed into
submission by the threat of the use of the recordings, the legality of
the possession of which is doubtful’. 98
133.6. ‘Questions of admissibility aside, the conversations themselves do
not impinge on the integrity of the charges against Mr Zuma nor do
they intrude upon the merits of the case. It is true that in the
recorded conversations there are exchanges between Mr McCarthy
and Mr Ngcuka about when Mr Zuma is to be charged. Collectively,
the conversations do not show a grand political design nor is there
any indication of clarity of thought on the part of Mr Ngcuka or
Mr McCarthy about how either former President Mbeki or Mr Zuma
would be decisively advantaged or disadvantaged by the service of
the indictment on either side of the Polokwane conference
timeline’. 99
133.7. ‘One is, even at this point in time, left in the dark about how the
service of the indictment after the Polokwane conference would

44
ultimately and conclusively have impacted more severely on
Mr Zuma than if it had been served before the conference. What is
clear, however, is that whatever Mr McCarthy’s design might have
been, it was superseded by the fact that the indictment could only
be served after the conference’. 100
133.8. ‘Moreover, even if one accepts that Mr McCarthy had an ulterior
purpose in seeking to have the indictment served after the
conference, his conduct had no bearing on the integrity of the
investigation of the case against Mr Zuma and did not impact on the
prosecution itself’. 101
133.9. ‘It also has to be borne in mind that Mr Mpshe himself and the
Minister thought it wise for the sake of the stability of the country, to
have the indictment served after the Polokwane conference’. 102
133.10. ‘The fact that Mr McCarthy, for his own reasons, advocated to have
the indictment served on 28 December 2007 rather than after
1 January 2008, which was what Mr Mpshe preferred, as pointed
out in Mr Steynberg’s note to Mr Hofmeyr, makes no material
difference’. 103
133.11. ‘From his media statement it appears that Mr Mpshe was willing to
accept that the case against Mr Zuma was strong, that fair trial
defences were not threatened and that there were no practical

45
difficulties in continuing with the prosecution. The motivation for
discontinuing the prosecution appears to have been policy aspects
that militate against the prosecution’. 104
133.12. ‘Mr Mpshe’s stated purpose for discontinuing the prosecution was
to preserve the integrity of the NPA and to promote its
independence’. 105
133.13. ‘It appears to me to be inimical to the preservation of the integrity of
the NPA that a prosecution is discontinued because of a non-
discernible negative effect of the timing of the service of an
indictment on the integrity of the investigation of the case and on
the prosecution itself. There is thus no rational connection between
Mr Mpshe’s decision to discontinue the prosecution on that basis
and the preservation of the integrity of the NPA. If anything, the
opposite is true. In these circumstances discontinuing a prosecution
in respect of which the merits are good and in respect of which there
is heightened public interest because of the breadth and nature of
the charges and the person at the centre of it, holding the highest
public office, can hardly redound to the NPA’s credit or advance the
course of justice or promote the integrity of the NPA’. 106
133.14. ‘Moreover, Mr Mpshe ignored the dictum in the Zuma judgment by
Harms DP [National Director of Public Prosecutions v Zuma 2009
(2) SA 277 (SCA) para 37] that a bad motive does not destroy a

46
good case. A prosecution brought for an improper purpose, so said
this Court in that case, is only wrongful if, in addition, reasonable
and probable grounds for prosecuting are absent. In the present
case, on the NPA’s own version, the case against Mr Zuma is a
strong one. Once it is accepted that the motive for a prosecution is
irrelevant where the merits of the case against an accused are
good, the motive for the timing of an indictment to begin the
prosecution must equally be so’. 107
133.15. ‘Mr Mpshe assigned to himself the role reserved for courts’. 108
133.16. ‘In the light of what is set out in the preceding paragraphs, it beggars
belief that the present regime at the NPA, on its own version of
events, saw fit to defend Mr Mpshe’s decision as being rational. For
all these reasons I can find no fault with the reasoning and
conclusions of the court below that the decision to discontinue the
prosecution was irrational and liable to be set aside’. 109
134. As further explained, the State did not rely on the evidence and allegations
of political interference in Mr Hofmeyr’s affidavit – i.e. the parts on which
Mr Zuma relied in the stay of prosecution application and on which he again
seeks to rely in the present proceedings – because the SCA had rejected
those aspects and made the following binding findings:

47
134.1. ‘For reasons that will become clear later in this judgment, it is worth
noting that counsel on behalf of the NPA wanted it placed on record
that no member of its present legal team had any hand in the drafting
and finalisation of the affidavits filed on behalf of the NPA’. 110
134.2. ‘Furthermore, this Court raised with counsel on behalf of the NPA our
concerns about the nature and substance of Mr Hofmeyr’s affidavit.
We also enquired of counsel why Mr Mpshe, the decision maker in
the present case, was not the principal deponent and why he only
made a ‘supplementary confirmatory affidavit’ after the DA had
provided its replying affidavit’. 111
134.3. ‘Early on in his affidavit, Mr Hofmeyr stated that he was tasked by
Mr Mpshe to investigate Mr Zuma’s claims of a political conspiracy
which included ‘but were not limited’ to allegations that Mr McCarthy
manipulated the timing of the service of the prosecution. A careful
consideration of Mr Hofmeyr’s affidavit reveals that much of it is
based on conjecture and supposition. What follows are a few
examples of how careful one has to be in assessing his assertions
…’ 112
134.4. ‘As can be seen, Mr Hofmeyr did not provide facts from which he or
this Court could draw such damning conclusions against any of the
individuals mentioned. He speaks of his investigations, the ambit and
nature of which are not disclosed. He refers to rumours and tells us

48
what he believes. He makes statements such as ‘as far as I am
concerned’. This is a wholly unsatisfactory approach. He refers to
unconnected political activity which in my view was resorted to in
order to create atmosphere against Mr McCarthy and those he
considered to be co-conspirators’. 113
134.5. ‘Mr Hofmeyr was intent on imputing the decision to prosecute
Mr Zuma to Mr McCarthy. He sought to dispel as untrue the
statement made on behalf of the NPA in an affidavit in other litigation,
that Mr Mpshe had made the decision to prosecute. This was done
notwithstanding that this Court in Zuma [i.e. National Director of
Public Prosecutions v Zuma 2009 (2) SA 277 (SCA)] had decided on
the evidence placed before it that Mr Mpshe had taken the decision
to prosecute Mr Zuma. In his affidavit in the present case,
Mr Hofmeyr claimed that Mr McCarthy had taken the decision to
prosecute, almost immediately before turning to assert Mr Mpshe’s
powers, purportedly in terms of s 179(5)(d) of the Constitution, to
review a decision of a Director of Public Prosecution (DPP). The DPP
he was referring to was Mr McCarthy. One is left with the impression
that Mr Hofmeyr took up this position because he was intent on
legitimising Mr Mpshe’s decision to discontinue the prosecution. It
appears contrived’. 114
134.6. ‘In resisting the DA’s application and supporting the decision to
discontinue the prosecution on the basis of Mr McCarthy’s

49
manipulation of the timing of the service of the indictment,
Mr Hofmeyr attempted to place the focus on Mr McCarthy being
responsible for the decision to delay the service of the indictment,
until after the Polokwane conference’. 115
134.7. ‘The picture that emerges from the documents filed in the court below
is of an animated Mr Hofmeyr, straining to find justification for the
discontinuation of the prosecution …’116
134.8. ‘I have already set out in some detail parts of Mr Hofmeyr’s affidavit,
which are but a small sample of the manner in which he approached
the present litigation. He is an experienced litigator who should know
better than to present the case in the manner described above.
Professedly advancing the cause of the NPA’s independence and
integrity, he achieved exactly the opposite. One now has a better
appreciation of the reluctance of counsel on behalf of the NPA to be
associated with the affidavits filed on its behalf’. 117
134.9. ‘Regrettably, the picture that emerges [from the NPA’s answering
affidavits in the DA application] is one of Mr Mpshe and Mr Hofmeyr
straining to find justification for the termination of the prosecution’. 118
135. We submit the SCA’s rejection of the allegations of political interference in
Mr Hofmeyr’s affidavit in the Spy Tapes litigation, means Mr Zuma cannot

118 Spy Tapes SCA para 94(x)
50
now seek to rely on them again in the present matter. It is not open to Mr
Zuma to seek to relitigate the Spy Tapes matter in the present matter.
136. Moreover, in its judgment in Mr Zuma’s application for a permanent stay of
prosecution, the Full Court dealt with and rejected Mr Zuma’s allegations
concerning the political interference on which Mr Mpshe based and
announced his April 2009 decision to discontinue his prosecution, that is the
allegations, made by Mr Hofmeyr in the main answering affidavit for the
NPA in the Spy Tapes matter, of political interference by Mr Ngcuka and the
then Head of the DSO, Mr McCarthy, at the time of the re-institution of the
prosecution against Mr Zuma in late 2007 revealed by intercepts of
telephone conversations between them. 119 We respectfully submit the
following findings of the Full Court are compelling:
‘[143] As aptly pointed out by the SCA in Zuma v Democratic Alliance &
others, 120 the Mpshe decision to discontinue the prosecution of Mr Zuma
was driven principally, if not exclusively, by what he considered to be
Mr McCarthy’s abuse of prosecution process in relation to the timing of the
service of the indictment. The recording of telephone calls between Messrs
McCarthy and Ngcuka were central to the Mpshe decision to discontinue
the prosecution. Mr Mpshe considered the spy tapes to be crucial in that
they reflected a manipulation of the process for ulterior purposes. The SCA
concluded pertinently that “[t]he reasons for discontinuing the prosecution
provided by Mr Mpshe do not bear scrutiny, for the recordings themselves
on which Mr Mpshe relied, even if taken at face value, do not impinge on

120 Zuma v Democratic Alliance & others 2018 (1) SA 200 (SCA) para 31
51
the propriety of the investigation on the case against Mr Zuma or the merits
of the prosecution itself”. 121 Crucially, Mr Zuma conceded and the SCA
found in the DA review appeal that Mr Mpshe’s decision to withdraw the
charges was irrational.
[144] We considered that Mr Zuma was also a party to the DA review
application and the findings of the SCA on this issue are binding upon him.
Assuming that Mr Zuma’s accusation was true, that his prosecution is
politically motivated, his contention will still be unsustainable because the
SCA reiterated in National Director of Public Prosecutions v Zuma 122 that a
prosecution brought for an improper purpose is only “wrongful if, in addition,
reasonable and probable grounds for prosecuting are absent”. It has not
been shown before us that there are no reasonable and probable grounds
for prosecuting Mr Zuma. Importantly, the challenges by Mr Zuma are not
aimed at the merits of the case against him . . .
[145] With regard to Mr McCarthy’s alleged motive in relation to the timing
of the service of the indictment, the SCA 123 neatly summed up the position
on the issue as follows:
“Even if one were to accept that Mr McCarthy had his own ulterior
purpose for having the indictment served after the
Polokwane conference rather than before it, what is indisputable is
that it was in any event not practically possible to have the indictment
served before the conference. There were nonetheless sound, other
121 Zuma v Democratic Alliance & others 2018 (1) SA 200 (SCA) para 94(iv).
122 National Director of Public Prosecutions v Zuma 2009 (2) SA 277 (SCA) para 37.
123 Zuma v Democratic Alliance & others above para 94(v).
52
reasons, such as the stability of the country, accepted as such by
both Mr Mpshe and the Minister of Justice and Constitutional
Development, that dictated service of the indictment after the
Polokwane conference. In the circumstances Mr McCarthy's alleged
motive in relation to the timing of the service of the indictment was
ultimately irrelevant.’ (Our emphasis.)”
Timing of the service of the indictment does not impact on the strength of
the State’s case against Mr Zuma and the prosecution of the case. . .’.
137. In its judgment the Full Court also dealt with and rejected Mr Zuma’s
allegations concerning Mr Mpshe’s April 2009 decision to discontinue his
prosecution, including his contention that the statement by Mr Mpshe when
announcing his decision was the clearest indication that the NPA itself has
acknowledged that its conduct, through Mr McCarthy, constituted an
egregious violation of the Constitution, the NPA Act and the prosecution
policy. 124
138. Mr Zuma alleges that Mr Downer knew about the conversations between
Mr McCarthy and Mr Ngcuka in the run-up to the ANC’s December 2007
elective conference and that Mr Downer was and is indifferent to them. 125
139. That is not correct. In Mr Downer’s answering affidavit for the State in
Mr Zuma’s application for a permanent stay of prosecution 126 he mentioned
that:
124 Full Court Judgment para 149

125 Plea explanation, pp 8-9 para 8.3 and p 76 para 153
53
139.1. As appears from Mr Ngcuka’s affidavit in those proceedings, 127 in the
run-up to ANC’s December 2007 elective conference, he and
Mr McCarthy had discussions about whether it would be wise to
charge Mr Zuma before the conference and they also discussed the
timing of the filing of the State’s answer to Mr Zuma application for
leave to appeal to the CC against the SCA’s judgments of
8 November 2007 128 upholding the search warrants and the letters
requesting international mutual legal assistance.
139.2. At the time Mr Downer did not know about those discussions, and as
far as he knows none of the other members of the NPA involved with
the Zuma/Thales matter knew about them either. Mr Downer first
learned of them after Mr Zuma’s legal representatives raised them
during their oral representations in February 2009.
139.3. Mr Downer believes Mr McCarthy was wrong to discuss these
matters with Mr Ngcuka because Mr Ngcuka was no longer with the
NPA, Mr Zuma’s prosecution was very sensitive, Mr Ngcuka was a
supporter of Mr Mbeki and even if their discussions did not amount
to political meddling (by Mr Ngcuka) or using the prosecution process
for political ends (by Mr McCarthy) they must have known their
discussions, if they became known, would be perceived as such.
127 Ngcuka affidavit, pp 2433-2435 paras 92-97 and pp 2437-2438 paras 106-109
128 National Director of Public Prosecutions and Others v Zuma and Another [2008] 1 All SA
197 (SCA) and Zuma and Others v National Director of Public Prosecutions [2008] 1 All
SA 234 (SCA)
54
140. In addition, in Mr Downer’s affidavit of 2 June 2015 in the Spy Tapes
matter, 129 he said the recordings of Mr Ngcuka’s and Mr McCarthy’s
discussions cast serious doubt on Mr McCarthy’s integrity and he was so
shocked by them that he was reduced to tears.
141. As to Mr Downer’s criticism of Mr Mpshe’s 6 April 2009 decision that the
prosecution be terminated, in his answering affidavit 130 Mr Downer admits
that he disagreed with Mr Mpshe, Mr Hofmeyr and the senior leadership of
the NPA who sought to defend Mr Mpshe’s decision. 131
142. Mr Downer explains that he believed then, and still does today, that the
advice the prosecution team had received in the run-up to the taking of that
decision from the two outside senior counsel advising the NPA, was correct.
The essence of that advice was the following:
142.1. Mr Mpshe’s decision in late 2007 to reinstitute the prosecution –
which was the currently operative decision to prosecute – was
defensible because, first, it was untainted by the allegations of
political conspiracy based on recordings in ‘the Spy Tapes’ – Mr
Mpshe did not know about Mr McCarthy’s conversations with Mr
Ngcuka and others in late 2007 – and, secondly, it was based on
evidence that is also untainted – the investigation and prosecution
team did not know about those conversations either.
129 Downer affidavit (Spy Tapes), p 3433 paras 83-84

130 Answering affidavit, pp 1492-1493 paras 40.16 and 40.17
55
142.2. The proper forum for evaluating the allegations and their relevance
to the fairness of the trial was the court in the permanent stay
applications the accused had said they would be bringing; and the
NPA could re-evaluate its position once the permanent stay papers
had been received, if necessary, depending on the evidence that was
tendered and response the NPA could tender.
143. As things turned out, in Spy Tapes, the SCA effectively endorsed that
advice and, thereafter, Mr Zuma did eventually bring an application for a
permanent stay of the prosecution based on his allegations of political
interference and prosecutorial misconduct. The State considered that
application and decided that it should be opposed for the reasons set out in
Mr Downer’s answering affidavit, 132 the affidavits of Messrs Ngcuka, 133
Pikoli 134 and Abrahams 135 and the State’s counsel’s heads of argument. 136
The State’s opposition of the application was vindicated when it was
dismissed by the Full Court, Mr Zuma’s initial attempts at seeking leave to
appeal failed (in this Court and the SCA) and his final attempt at doing so
was abandoned (in the CC).
144. We submit Mr Zuma cannot now to seek to hold against Mr Downer, and to
seek his removal as the prosecutor in this case on the basis of his:
144.1. insistence that Mr Zuma be prosecuted on the charges now set out
in the indictment; and
132 Downer affidavit (stay), pp 2011-2401

133 Ngcuka affidavit, pp 2402-2438
134 Pikoli affidavit, pp 2439-2547
135 Abrahams affidavit, pp 2548-2593
136 Annexures BD 11 and BD 12 pp 2942-3224
56
144.2. rejection, in the answering affidavit for the State in Mr Zuma’s failed
stay of prosecution application, of Mr Zuma’s core allegation that his
prosecution has been tainted by political interference and
prosecutorial misconduct such that no fair trial may be conducted on
those charges.
Mr Downer’s public reaction to Mr Mpshe’s decision
145. Mr Zuma makes two allegations concerning Mr Downer’s public reaction to
Mr Mpshe’s decision on 6 April 2009 to discontinue his prosecution.
146. Mr Zuma’s first allegation is that in Mr Downer’s affidavit of 2 June 2015 in
the Spy Tapes matter 137 Mr Downer said that he cried when Mr Mpshe
announced his decision to terminate Mr Zuma’s prosecution and he
threatened to resign in protest against that decision. This, Mr Zuma alleges,
shows that Mr Downer lacks the steadiness and objectivity required to
prosecute fairly and without a single-minded pursuit of a conviction. 138
147. However, it is not true that in his affidavit of 2 June 2015 Mr Downer stated
that he cried when Mr Mpshe announced his decision on 6 April 2009 to
discontinue Mr Zuma’s prosecution and that he threatened to resign in
protest against that decision.
148. As Mr Downer explains in his answering affidavit, 139 the occasion on which
he was reduced to tears was at a meeting on 18 March 2009 attended by
137 Downer affidavit (Spy Tapes), pp 3416-3435

138 Plea explanation, p 13 para 8.12 and p 76 para 153
139 Answering affidavit, p 1505 para 58.4, referring to Downer affidavit (Spy Tapes), p 3433
paras 83-84
57
Mr Mpshe, the deputy NDPPs, the prosecution team and the Investigating
Director of the DSO, Adv Mngwengwe, when Mr Hofmeyr and the then
acting head of the DSO, Adv Mzinyathi, made a presentation on the
contents of the ‘Spy Tapes’ recordings of Mr McCarthy’s conversations with
Mr Ngcuka.
149. As regards what Mr Downer said about resignation in his affidavit of 2 June
2015, as appears from the relevant part of that affidavit, 140 and as
Mr Downer explains in his answering affidavit, 141 it was dealing with a
memorandum from the prosecution team to Mr Mpshe dated 6 December
2007. The memorandum followed that Mr Mpshe had told Mr Downer that
he had decided to delay announcing the decision to charge Mr Zuma until
the following year because he did not wish the NPA to be seen to be
responsible for Mr Zuma failing to be elected as ANC President at
Polokwane. As Mr Downer said in his affidavit of 2 June 2015, the
prosecution team’s view was that any decision to delay the prosecution for
reasons unconnected to the prosecution was improper. The memorandum
said the team felt so strongly about this that they had initially decided to
resign from the prosecution in protest, but reconsidered doing so in the
interests of the NPA.
150. Mr Zuma’s second allegation concerning Mr Downer’s reaction to
Mr Mpshe’s decision on 6 April 2009 to discontinue his prosecution is that
in ‘public engagements’ Mr Downer has ‘freely given strong views’ which
140 Downer affidavit (Spy Tapes), pp 3429-3430 paras 59-63

141 Answering affidavit, pp 1505-1506 para 58.5
58
have ‘galvanised political campaigns for my prosecution’. 142 Mr Zuma adds
that Mr Downer gave public lectures in which he denounced the decisions
taken about his prosecution. 143
151. As Mr Downer points out in the answering affidavit, 144 he has only spoken
publicly on one occasion, outside of proceedings in court, regarding
Mr Zuma’s prosecution. It was when he delivered a lecture at the Middle
Temple South African Conference on 24 September 2010. 145 At the
request of the Middle Temple the then NDPP, who was Mr Simelane,
agreed to release him to deliver the lecture. None of the cases on which he
commented, including the present criminal prosecution, were ‘live’ at the
time when he delivered the lecture. 146
152. In any event, Mr Downer’s criticism in that lecture of Mr Mpshe’s decision,
which was drawn from the lecture given by the NPA’s lead counsel
Wim Trengove SC at the University of Cape Town on 15 April 2009 147, with
which Mr Downer agreed, has been superseded by the findings of the SCA
in the Spy Tapes matter.
153. Finally in this regard, in its judgment the Full Court did not deal with
Mr Zuma’s allegations of misconduct by Mr Downer and Mr Trengove
concerning the public lectures they gave after Mr Mpshe had withdrawn the
142 Plea explanation, p 13 para 8.13

143 Plea explanation, p 79 para 164 and p 106 para 221.2
144 Answering affidavit, p 1507 para 59.3 and pp 1564-1565 para 126.1
145 Downer Middle Temple lecture 24 September 2010, pp 4076-4112
146 Mr Zuma’s further allegation that in that lecture Mr Downer condemned the judgment of
Msimang J striking his first prosecution from the roll in September 2006 (plea explanation,
pp 79-80 para 164), is incorrect. See answering affidavit, p 1565 para 126.2
147 Trengove UCT lecture 15 April 2009, pp 4113-4131, parts of which are quoted or
paragraphs in the plea explanation, pp 95-96 paras 192-194
59
charges against Mr Zuma in April. This was because, at the hearing before
the Full Court, Mr Zuma’s counsel expressly abandoned the attacks on
them. 148 We submit that, in so doing, Mr Zuma, through his counsel, waived
his right to rely on this alleged misconduct as a basis for claiming that he
will not have the fair trial guaranteed by section 35(3) of the Constitution.
Mr Downer’s affidavit in the Spy Tapes matter
154. Mr Zuma alleges that in the Spy Tapes matter Mr Downer filed an affidavit
in support of the DA’s application to review and set aside Mr Mpshe’s April
2009 that the prosecution of Mr Zuma be discontinued. He alleges that by
doing so Mr Downer sided with the DA and associated himself with the
political goals of the DA and participated in its political campaign against
him. He further alleges that the filing of this affidavit and Mr Downer’s
opposition to the NPA’s basis for defending the termination of prosecution
place Mr Downer in the position of a prosecutor who is neither independent
nor impartial in relation to his right to a fair trial. 149
155. These allegations lack any merit, for the following three reasons.
156. First, while it is correct that Mr Downer made an affidavit in the Spy Tapes
matter in which he dealt with Mr Hofmeyr’s main answering affidavit for the
NPA insofar as it related to him, Mr Downer did not make it in support of the
DA. Mr Downer made the affidavit at the request of Mr Hofmeyr, after he
had refused to make an affidavit simply confirming the contents of
148 Answering affidavit, pp 1469-1470 para 27, p 1504 para 55.9 and pp 1530-1531 para 87.1
149 Special plea, p 2 para 3; plea explanation, p 8 para 8.2, p 9 para 8.3, p 76 para 154, p 77
para 157, p 94 para 190, p 100 para 200, pp 125-126 para 263 and pp 136-137 para 283.2
60
Mr Hofmeyr’s affidavit insofar as they related to him. The draft Mr Downer
then prepared was revised by counsel for the NPA (Adv Millard). On 11
June 2015 the finalised affidavit was filed by the State Attorney representing
the NPA. 150
157. Second, Mr Downer’s affidavit in the Spy Tapes matter contains a truthful
account of his and the DSO investigation and prosecution team’s
involvement and views in and regarding the matters in the paragraphs of Mr
Hofmeyr’s affidavit relating to the team or him.
158. Third, while it is correct that Mr Downer was opposed to Mr Mpshe’s April
2009 decision to withdraw the charges against Mr Zuma, at the hearing of
the Spy Tapes matter in the SCA Mr Zuma’s counsel conceded that
Mr Mpshe’s decision was unlawful and irrational, the SCA thereupon
delivered a detailed judgment in which it held the decision was unlawful and
irrational and neither Mr Zuma nor the NPA sought leave to appeal to the
CC against the SCA Spy Tapes judgment.
‘Browse Mole’, Mr McCarthy’s and foreign intelligence services
159. Mr Zuma alleges that Mr McCarthy was in regular contact with intelligence
operatives of foreign governments and he freely discussed Mr Zuma’s
prosecution with them; 151 that Mr McCarthy was an intelligence operative
handled by a Central Intelligence Agency agent, one Andre Pienaar152
150 Answering affidavit, pp 1476-1477 para 40.3; annexures BD 16, BD 17 and BD 18,
pp 3399-3435
61
code-named Lucianno; 153 and that ‘foreign intelligence’ was involved in his
prosecution. 154 Mr Zuma relies on two sources of information for these
allegations, namely the ‘Browse Mole’ report 155 and the ‘Spy Tapes’. 156
160. Mr Zuma asserts, without a shred of evidence, that Mr Downer: ‘would have
known the role of Mr McCarthy to whom he reported’; 157 ‘was aware that
there was regular contact between foreign intelligence agencies and
Mr McCarthy, the person to whom he reported’; 158 ‘is acutely aware of
Mr McCarthy’s intelligence connections’; 159 knew Mr McCarthy had
received gifts from Mr Pienaar and discussed his case with Mr Pienaar; 160
and, ‘to favour his boss and allow him to leave South Africa without facing
consequences for his action’, deliberately omitted to report Mr McCarthy’s
conduct to the relevant authorities. 161 Mr Zuma also says that he ‘fears’
Mr Downer covered up Mr McCarthy’s conduct. 162
161. Mr Downer says he does not know whether or not Mr McCarthy was in
contact with intelligence operatives of foreign governments let alone
whether he discussed Mr Zuma’s prosecution with them. 163
162. However, as Mr Downer points out, 164 the evidence on which Mr Zuma
relies in his affidavit – the Browse Mole Report and the ‘Spy Tapes’ of

155 Plea explanation, p 16 para 11; Browse Mole report, pp 1425-1453; see also plea
explanation, pp 109-116 paras 234-247
157 Plea explanation, p 16 para 11; see also p 17 para 12
62
Mr McCarthy’s conversations with Mr Pienaar (a person unknown to
Mr Downer) – is not new.
163. Mr Hofmeyr relied on both in his affidavit in the Spy Tapes matter. 165 As
regards the Browse Mole Report, see paragraphs 37-38, 57.2, 246.2, 246.5,
246.6, 262 and 313-359 of Mr Hofmeyr’s affidavit. As regards the intercepts
of Mr McCarthy’s conversations with Mr Pienaar, see paragraphs 25-26,
282, 289 and 306-312 of Mr Hofmeyr’s affidavit (in which he says Mr
Pienaar is referred to in the record as ‘Luciano’).
164. Mr Hulley, Mr Zuma’s then attorney, who made the answering affidavit on
his behalf in the Spy Tapes matter on 15 April 2015, 166 also referred to the
Browse Mole Report. See paragraphs 9, 24.5, 24.8 to 24.10, 24.13, 29,
35.3, 38.3, 39 and 120-136, 175.3, 175.5, 190, 193, 201, 216, 227, 229,
236, 237, 241.1, 249.2, 251.3, 252, 255 to 257, 290, 301, 309, 314, 334,
347, 350, 351, 370, 373, 383, 390, 391.1, 412, 413, 442, 451 and 457.3.
165. In addition, Mr Hulley made it clear in his affidavit that he had read
Mr Hofmeyr’s affidavit and accepted the factual averments and contentions
therein, save in a few instances where he said they needed to be qualified
or added to. See paragraph 6.1 of Mr Hulley’s affidavit. 167 In the rest of his
affidavit Mr Hulley did not qualify or add to anything Mr Hofmeyr had said
regarding the intercepts of Mr McCarthy’s conversations with Mr Pienaar.

166 Hulley affidavit (Spy Tapes), pp 3695-3860
167 Hulley affidavit (Spy Tapes), pp 3697-3698 para 6.1
63
166. In his application for a permanent stay of prosecution Mr Zuma also raised
the Browse Mole Report. See in this regard his counsel’s heads of
argument paragraphs 3.72, 3.98 and 4.68 to 4.80. 168
167. Mr Zuma’s allegations regarding the Browse Mole Report were dealt with in
Mr Downer’s answering affidavit for the State in that application, as well as
by Mr Pikoli in his affidavit. 169 As Mr Downer explained in his affidavit: 170
‘‘In his affidavit, Pikoli gives a detailed account of the Browse Mole
investigation and report, his response and actions when he read the report
in July 2006 and his actions in 2007 when the report was leaked (see
especially paragraph 61). He explains that after reading it he instructed
McCarthy to stop the investigation because the issues that had arisen were
primarily intelligence matters within the field of operations of the NIA
[National Intelligence Agency] and the SASS [South African Secret Service];
and further that he met with and handed copies of the report to the Directors-
General of those agencies. He further explains that following the leaking of
the report he and the DSO co-operated with the ensuing investigation by
the Directors-General of the departments represented on the National
Security Council and when he later briefed on the outcome of that
investigation nothing adverse to them was mentioned. He further explains
why he considers that the involvement of the DSO in the investigation fell
within its legal mandate to gather, keep and analyse information relating to
168 Mr Zuma’s heads of argument (stay), p 2811 para 3.72, pp 2819-2820 para 3.98 and
pp 2848-2855 paras 4.68 - 4.90
169 Pikoli affidavit, p 2442 paras 9-10, pp 2469 paras 61-63, p 2480 paras 71-72, p 2516 para
124 and p 2518 para 127
170 Downer affidavit (stay), pp 2037 para 60
64
offences or criminal or unlawful activities committed in an organised fashion
(section 7(1)(a)(iii) of the NPA Act, as it read at the time) (see especially
paragraphs 72, 124 and 127.3 of Pikoli’s affidavit). Finally, and crucially, he
points out that the contents of the Browse Mole report had nothing to do
with and played no part in the investigation and prosecution of Zuma and
Thomson, and that during his time as the NDPP it was not handed to the
investigators or prosecutors handling the investigation and prosecution (see
paragraphs 71 and 127.2 of Pikoli’s affidavit). Du Plooy and I confirm that
was the case even after the Pikoli was suspended and later removed from
the office of NDPP (by which stage, the report had been leaked).’ (As
regards the reference in the last sentence to ‘Du Plooy’, it is to Col Du
Plooy.)”
168. In its judgment, the Full Court dealt with and rejected Mr Zuma’s allegations
concerning the ‘Browse Mole’ investigation and report. 171 The Full Court
endorsed the Browse Mole related findings of the courts which had dealt
with the Spy Tapes matter. The Full Court’s findings included the following
(in paragraph 148):
‘‘In the DA review application, the full court found 172 and the SCA
confirmed 173 that references by Mr Hofmeyr to Mr McCarthy’s conduct in
relation to the Browse Mole report were considered to be diversionary and
irrelevant as they were unconnected to the prosecution or the service of the
indictment. The full court also held that there was no rational link between

172 Democratic Alliance v Acting National Director of Public Prosecutions & others (Society for
the Protection of our Constitution as amicus curiae) [2016] 3 All SA 78 (GP) para 52
173 SCA Spy Tapes para 42
65
Mr McCarthy’s alleged conduct and Mr Mpshe’s decision to discontinue the
prosecution. We align ourselves with this view.’
169. We respectfully submit these findings are compelling.
170. Moreover, in his answering affidavit, Mr Downer denies he was involved in
the Browse Mole investigation or report, saying he was not aware of the
existence of the Browse Mole investigation and report until the report was
publicised after having been leaked. 174 He adds that none of the evidence
gathered by the investigation and prosecution team – all of which has been
discovered to the accused’s legal representatives – derives from the
Browse Mole investigation and report. 175 He explains that the contents of
the Browse Mole Report had nothing to do with and played no part in the
investigation and prosecution of Mr Zuma and Thales, it was not handed to
the investigators or prosecutors handling the investigation and
prosecution. 176
171. Mr Downer further denies that ‘foreign intelligence’ was involved in
Mr Zuma’s prosecution, let alone that he knew about it. 177
172. Mr Downer says he was not aware of the existence of Mr Pienaar let alone
Mr McCarthy’s conversations with him until the prosecution team was
briefed about the Spy Tapes in March 2009 following their disclosure to the
NPA by Mr Zuma’s legal representatives in February 2009. 178 Mr Downer

66
adds that he is not aware of any evidence that anyone in the NPA other
than Mr McCarthy himself was aware of his interactions with the persons
evidenced by the ‘Spy Tapes’ until Mr Zuma’s legal representatives
disclosed them to the NPA in February 2009. 179
173. Mr Downer points out that Mr McCarthy resigned from the NPA on 23 June
2008 and by the time Mr Zuma’s legal representatives disclosed the ‘Spy
Tapes’ to the NPA in February 2009, he had emigrated and was working for
the World Bank in Washington. 180
174. Mr Downer further points out that in the run-up to Mr Mpshe’s decision to
discontinue Mr Zuma’s prosecution on 6 April 2009, the NPA made various
unsuccessful attempts to get substantive comments from Mr McCarthy,
including by sending him a detailed series of questions arising from the ‘Spy
Tapes’ recordings; 181 and further that Mr McCarthy (and Mr Mpshe) refused
to consult with the State for purposes of the preparation of its answering
papers in Mr Zuma’s application for a permanent stay of prosecution. 182
175. As regards Mr Zuma’s unsubstantiated allegations that Mr Downer ‘would
have known’ or ‘was aware’ of Mr McCarthy’s alleged actions because he
(Mr Downer) reported to Mr McCarthy, Mr Downer adds183 that the fact that
he reported to Mr McCarthy regarding the investigation and prosecution of
the present accused – he was the Head of the DSO and the investigation
and prosecution was a DSO project – that did not mean that he knew about

180 Answering affidavit, p 1522 para 68.4; p 1525 para 74.2
181 Answering affidavit, p 1522, para 68.5
67
his involvement in other matters. Mr Downer also points out that he did not
then have and does not now have any management responsibilities within
the NPA at head office level.
176. We submit that Mr McCarthy’s conduct, of which Mr Downer was unaware,
has no bearing on his suitability for the role of the prosecutor in this matter.
Mr Downer’s failure to report political interference
177. Mr Zuma alleges Mr Downer ‘is and always has been aware’ of unlawful
political interference in decisions concerning his prosecution, but failed to
report it in breach of section 32(2) of the NPA Act. 184
178. However, as Mr Downer explains, 185 the only events which may amount to
political interference in decisions regarding Mr Zuma’s prosecution of which
he is aware are the discussions between Mr McCarthy and Mr Ngcuka in
2007 described in paragraph 139 above. However, Mr Downer was not
aware of them at the time. They were reported in February 2009 by Mr
Zuma’s legal representatives to the senior leadership of the NPA, including
the then Acting NDPP Mr Mpshe, who in turn informed the prosecution team
about them. On 6 April 2009 Mr Mpshe made them public when announcing
his decision to discontinue Mr Zuma’s prosecution. There was accordingly
no need for Mr Downer to report them to anyone.
184 Plea explanation, p 8 para 8.3, p 10 para 8.5, p 11 paras 8.7 to 8.7
185 Answering affidavit, pp 1500-1501 para 53; Downer affidavit (stay), pp 2175-2180 paras
360-364
68
Mr Downer’s alleged leaks to the media
179. Mr Zuma alleges that Mr Downer was in regular contact with journalists who
wrote very hurtful and prejudicial articles about him. 186 He alleges that Mr
Downer leaked confidential information about the investigation and
prosecution to a journalist, Mr Sam Sole of the Mail & Guardian
newspaper; 187 and that Mr Sole obtained from Mr Downer the information
for an article published in the Mail & Guardian on 29 November 2002 stating
Mr Zuma was involved in an attempt to secure a R500 000 bribe from the
Thales Group. 188 Mr Zuma substantiates these allegations with transcripts
of telephone discussions between Mr Sole and Mr Downer. 189
180. As Mr Downer points out, in Mr Zuma’s stay of prosecution application he
made a similar allegation, namely that Mr Downer was ‘in constant
communication with members of the media, feeding them a narrative that
sought to irreparably prejudice [the first accused] outside a trial’; 190 and the
allegation that Mr Downer was the source of the information for Mr Sole’s
article published the Mail & Guardian on 29 November was made, albeit
rather obliquely, by Mr Zuma’s counsel in their heads of argument in his
stay of prosecution application. 191
181. The Full Court did not deal with these allegations because, at the hearing
of the stay application, Mr Zuma’s counsel expressly abandoned his attacks

187 Plea explanation, pp 11-12 paras 8.9 to 8.10 and p 35 para 49
189 Spy Tapes (Sole and Downer) excerpts, pp 407-412; annexure JGZ 14, pp 1214-1239
191 Answering affidavit, pp 1530-1531 para 87.1, referring to Mr Zuma’s heads of argument
(stay) p 2853 para 4.83
69
on Mr Downer. We again submit that, in so doing, Mr Zuma, through his
counsel, waived his right to rely on this alleged misconduct as a basis for
claiming that he will not have the fair trial guaranteed by section 35(3) of the
Constitution.
182. In any event, as appears from the complete version of Mr Sole’s telephone
calls to Mr Downer in the period 5 June 2008 to 2 July 2008, 192 most of them
were entirely unrelated to the investigation or prosecution of Mr Zuma.
Moreover, nothing Mr Downer said (mainly in response to questions from
Mr Sole) contravened the NPA Act or the NPA Prosecution Policy. The two
questions relating to the investigation or prosecution of Mr Zuma which
Mr Downer answered concerned the workings of the International Co-
operation in Criminal Matters Act 75 of 1996 and international requests for
mutual legal assistance. 193
183. Turning to Mr Sole’s article of 29 November 2002, as Mr Zuma himself
points out, 194 Mr Sole cited as his sources an affidavit by Mr Shaik dated
26 September 2002 in public proceedings in the Durban High Court in which
he stated Mr Zuma might be one of the persons under investigation – this
was the first public statement that Mr Zuma was under investigation – and
an earlier affidavit by Mr Downer in an application for MLA in which Mr Zuma
was not named, but instead referred to as ‘Mr X’.
184. As Mr Downer explains, while Mr Zuma was the incumbent Deputy
President (which is when the bulk of the investigation work was done), the
192 Spy Tapes (Sole and Downer) complete, pp 3436-3443

70
NPA took extraordinary measures to keep the fact that he was being
investigated and what was being investigated out of the media. 195 It was
Mr Shaik who in his affidavit of 26 September 2002 made public the fact
that the DSO was investigating Mr Zuma. 196
185. We accordingly submit that Mr Zuma’s allegations that Mr Downer leaked
confidential information about the investigation and prosecution to Mr Sole
amount to speculation, unsupported by any evidence.
Mr Downer’s insistence that Mr Zuma be prosecuted
186. Mr Zuma alleges that Mr Downer has championed his prosecution with
‘unrestrained gusto’ to ensure that he is convicted ‘at all costs’; 197 and that
Mr Downer’s ‘twenty-year long commitment to this case is now an
obsession for a legacy and not a pursuit of justice’. 198 He also insinuates it
is Mr Downer alone who has pursued the case against him. 199
187. In his answering affidavit in the present matter, 200 Mr Downer describes four
important documents addressed by him and the prosecution team to the
NDPPs, all of which show that, far from seeking Mr Zuma’s conviction with
unrestrained gusto and aiming to secure his conviction at all costs, Mr
Downer and the team have consistently adopted a careful and measured
approach:

196 Answering affidavit, p 1530 para 86
197 Plea explanation, p 14 para 8.14
71
187.1. First, on 16 June 2005 Mr Downer and Mr Steynberg, a Deputy
Director of Public Prosecutions and the other main prosecutor in the
Shaik trial, addressed a detailed memorandum to Mr Pikoli on the
prospects of a successful prosecution of Mr Zuma on charges of
corruption related to those on which Mr Shaik and his Nkobi
companies had been convicted by the Durban High Court, as well
charges of fraud in respect of Mr Zuma’s declarations to Parliament
and the Secretary to Cabinet arising from his failure to declare the
benefits received from Mr Shaik and the Nkobi companies as
required by the Parliamentary Code of Conduct and the Executive
Ethics Code. 201 This memorandum shows that while Mr Downer and
Mr Steynberg believed the outcome of the Shaik trial, including the
court’s findings on issues concerning the admissibility of documents,
would assist the State in a future prosecution of Mr Zuma, and that
its findings regarding the evidence of the witnesses for the
prosecution was a strong indication that their evidence was reliable,
they nevertheless adopted a careful and measured approach to the
issue of whether he should be charged.
187.2. Second, on 13 November 2007 the prosecution team submitted to
Mr Mpshe a formal application in terms of s 2(4) of POCA for the
inclusion of racketeering charges in terms of s 2(1) of POCA in the
indictment, a copy of a draft of which accompanied the application. 202
201 Prosecution team memo 16 June 2005, pp 3444-3533

202 Section 2(4) POCA application 13 November 2007, pp 3534-3563
72
This application contains a careful weighing up of the pros and cons
of the proposed inclusion of the racketeering charges.
187.3. Third, on 3 March 2009 the prosecution team addressed a
memorandum to Mr Mpshe containing its evaluation of Mr Zuma’s
representations that his prosecution should be discontinued, and
recommending that they be declined. 203
187.4. Fourth, on 14 April 2009 the prosecution team addressed a
memorandum to Mr Mpshe recounting the events and decisions
involving the prosecution team shortly before and after Mr Mpshe’s
media conference on 6 April 2009 at which he announced his
decision to discontinue Mr Zuma’s prosecution, and recording the
team’s reservations about Mr Mpshe’s decision and the process by
which it had been reached. 204 The prosecution team’s criticism in
this memorandum of the legal motivation given by Mr Mpshe for his
decision to discontinue Mr Zuma’s prosecution, 205 is measured.
188. In his answering affidavit 206 Mr Downer explains that his insistence since
2003 that Mr Zuma be prosecuted has been based on the following
considerations:
188.1. His and the investigation and prosecution team’s assessment of the
evidence against Mr Zuma – which is that there is at least a
reasonable prospect the prosecution will be successful.
203 Prosecution team memo 3 March 2009, pp 3564-3574

204 Prosecution team memo 14 April 2009, pp 3575-3580
205 Quoted in the answering affidavit pp 1579-1580 para 149.2
73
188.2. The seriousness of the offences in question – involving as they do
the alleged corruption of the second most senior member of the
National Executive.
188.3. His and the team’s view that the evidence of political interference on
which Mr Zuma relies – notably Nicholson J’s findings of political
interference, the events in late 2007 involving Mr McCarthy and
Mr Ngcuka on which Mr Mpshe based and announced his April 2009
decision to discontinue Mr Zuma’s prosecution and the more wide-
ranging evidence and allegations in Mr Hofmeyr’s affidavit in the Spy
Tapes matter – is either unsubstantiated conjecture or has not
infringed his right to a fair trial.
189. Finally in this regard, as Mr Downer points out, 207 Mr Zuma wrongly seeks
to ascribe to Mr Downer the decisions to prosecute him and to continue the
prosecution. The decisions to prosecute Mr Zuma were taken by the NDPPs
(Mr Pikoli in June 2005 and Mr Mpshe in December 2007) in conjunction
with the investigation and prosecution team and the head of the DSO (in
both instances) and the other Deputy NDPPs (in the latter instance).
190. Upon the SCA’s decision in SCA Spy Tapes on 13 October 2017, the
criminal proceedings instituted in December 2007 against Mr Zuma were
reinstated.
191. When Mr Abrahams announced his decision to reject Mr Zuma’s
representations on 16 March 2018, he said ‘there are reasonable prospects
207 Answering affidavit, pp 1494-1495 para 40.20, pp 1506-1507 para 59.2 and pp 1556-1557
para 112.1
74
of a successful prosecution of Mr Zuma on the charges listed in the
indictment, served on Mr Zuma prior to the termination of the matter by
Adv Mpshe SC’. 208
192. In short, the reason Mr Zuma is being prosecuted is not because Mr Downer
is insistent on prosecuting him – Mr Downer has been delegated by the DPP
to do so – but because the NDPP, obedient to Spy Tapes SCA, decided
that his prosecution must continue and the Full Court thereafter rejected his
claim that his prosecution be stayed permanently. 209
193. Finally as regards Mr Zuma’s attacks on Mr Downer, we point out that in
none of the numerous judgments in the long and troubled history 210 of the
prosecution of Mr Zuma, has any court ever criticised Mr Downer or the
prosecution team for their insistence that Mr Zuma be prosecuted. The
reason, we submit, is obvious. Mr Downer and his team were, and are,
clearly right.
208 Abrahams affidavit, p 2580 para 77

210 National Director of Public Prosecutions v Zuma 2009 (2) SA 277 (SCA) para 2, repeated
nine years later in SCA Spy Tapes para 2
75
A HEARING OF ORAL EVIDENCE
194. In paragraph 14 211 and elsewhere in his replying affidavit, 212 Mr Zuma
claims that the determination of his special plea requires ‘an evidentiary
hearing on two aspects’, namely ‘whether, as a fact, Mr Downer lacks the
independence and impartiality to conduct a lawful prosecution, even though
he can prove the formal qualifications’ and ‘whether I should be acquitted in
terms of section 106(4)’. Mr Zuma says the latter entails examining
‘whether the State has lost the title to present evidence against me’. He
concludes his replying affidavit by saying that he ‘will seek an order that an
evidentiary hearing be conducted on the issues relating to whether evidence
or political meddling has undermined the State’s duty to conduct a fair and
impartial hearing’. 213
195. Before addressing the merits of Mr Zuma’s application for a referral to oral
evidence, we point out that in his application for permanent stay of
prosecution, Mr Zuma could have, but did not, seek the referral of any
material issues in dispute to oral evidence. 214
196. It is trite that, before a court grants a referral to oral evidence, it must be
satisfied that the party seeking the referral has adduced evidence that is not
vague, insubstantial or otherwise insufficient to create a dispute of fact. 215
211 Replying affidavit, p 4162

212 Replying affidavit, pp 4162-4163 paras 15-16, p 4179 para 51, pp 4189-4191 paras 68-69,
p 4193 para 76, p 4195 paras 80-81, p 4214 para 145 and p 4234 para 213
215 King William's Town Transitional Local Council v Border Alliance Taxi Association (BATA)
2002 (4) SA 152 (E) 156I-J
76
197. Mr Zuma bases his application for a referral to oral evidence on allegations
of bad faith and serious impropriety against Mr Downer.
198. It is also trite that a court will not infer bad faith and impropriety lightly. Bad
faith has been described as ‘a strong allegation not lightly to be alleged and
which is difficult to prove’. 216
199. Yet, as we have shown, all of Mr Zuma’s allegations of bad faith and serious
impropriety are based on sheer speculation and are not founded on any
evidence whatsoever.
200. Our courts have frequently emphasised that it is not permissible for a litigant
to build a case on inference unless it is underpinned by objective facts.
Without a foundation of fact, the inferences become mere conjecture or
speculation: 217
‘There can be no inference unless there are objective facts from which to
infer the other facts which it is sought to establish. In some cases, the other
facts can be inferred with as much practical certainty as if they had been
actually observed. In other cases the inference does not go beyond
reasonable probability. But if there are not positive proved facts from which
the inference can be made, the method of inference fails and what is left is
mere speculation or conjecture.’
216 Golden Arrow Bus Services (Pty) Ltd v City of Cape Town and Others (11785/12) [2013]
ZAWCHC 60 (26 April 2013) para 39
217 Bates & Lloyd Aviation v Aviation Insurance Co 1985 (3) SA 916 (A) 939; Moraitis
Investments v Montic Diary 2017 (5) SA 508 (SCA) 523; Gavric v Refugee Status
Determination Officer 2019 (1) SA 21 (CC) para 115, footnote 115
77
201. A party is not entitled to make unsubstantiated allegations and then seek a
referral to oral evidence in the hope that the persons to be cross-examined
may make helpful admissions. This would amount to a fishing expedition. 218
202. In 2009 219 the SCA awarded punitive costs against Mr Zuma for making
irrelevant insults based on suspicion and not on fact. It added that the
punitive costs order was fully justified ‘especially since it is not the first
occasion on which Mr Zuma has insisted on including such irrelevant
allegations.’
203. Mr Zuma again resorts to the same tactic in this case. His special plea and
especially his plea explanation are replete with emotive and at times
insulting accusations based on conspiracy theories without any foundation
in fact. His replying affidavit does not seriously engage with Mr Downer’s
substantiated denials of his allegations.
204. A good example is his allegation that in the Spy Tapes matter Mr Downer
filed an affidavit in support of the DA’s application and that, by doing so,
Mr Downer sided with the DA and associated himself with the political goals
of the DA and participated in its political campaign against him. Despite Mr
Downer’s explanation and evidence in his answering affidavit that he made
his affidavit of 2 June 2015 in the Spy Tapes matter at the request of Mr
Hofmeyr and that the affidavit was filed by the State Attorney representing
the NPA, 220 in his replying affidavit Mr Zuma blithely repeats that in the Spy
218 4 Africa Exchange (Pty) Ltd v Financial Sector Conduct Authority and Others 2020 (6) SA
428 (GJ) para 51
219 National Director of Public Prosecutions v Zuma 2009 (2) SA 277 (SCA) paras 81-82
78
Tapes application Mr Downer supported the relief sought by the DA 221 and
made common cause with the DA. 222
205. It is well established that, in applications generally, if on the affidavits the
probabilities are evenly balanced, the Court would be more inclined to allow
the oral evidence than if the balance is against the applicant. And the more
the scales against the applicant, the less likely the Court would be to
exercise the discretion in his favour. Only in rare cases would the Court
order the hearing of oral evidence where the preponderance of probabilities
on the affidavits favoured the respondent. 223
206. We submit Mr Zuma’s application for the hearing of oral evidence should be
disallowed. For the most part, there are no real disputes of fact. Most of
the purported disputes are the State’s denial of Mr Zuma’s conspiracy
theories, which are not underpinned by any evidence at all. And in the few
instances where there are disputes of fact, the preponderance of
probabilities on the affidavits favours the State. What Mr Zuma wants is to
cross-examine Mr Downer and others in an attempt to make a case where
none existed before.
221 Replying affidavit, p 4168 para 26.5

223 Wishart and Others v Blieden NO and Others 2013 (6) SA 59 (KZP) paras 59-60 and the
authorities cited there
79
CONCLUSION
207. The State accordingly asks that Mr Zuma’s plea in terms of section
106(1)(h) and (4) of the CPA be dismissed.
Wim Trengove SC
Andrew Breitenbach SC
Ncumisa Mayosi
Hephzibah Rajah
Counsel for the State
Chambers, Sandton and Cape

Town
12 July 2021
80
TABLE OF AUTHORITIES
Legislation
1 The Constitution of the Republic of South Africa, 1996
2 The Criminal Procedure Act 51 of 1977
3 The National Prosecuting Authority Act 32 of 1998
Case law
4 S v Shaik and Others 2007 (1) SACR 142 (D)
5 S v Shaik and Others 2007 (1) SA 240 (SCA)
6 S v Shaik and Others 2008 (2) SA 208 (CC)
7 Zuma and Another v NDPP and Others 2006 (1) SACR 468 (D)
8 S v Zuma and Others (CC358/05) [2006] ZAKZHC 22 (20 September 2006)
9 National Director of Public Prosecutions v Zuma and Others (13569/2006)
[2007] ZAKZHC 4 (2 April 2007)
10 National Director of Public Prosecutions and Others v Zuma and Another [2008]
1 All SA 197 (SCA)
11 Thint (Pty) Ltd v National Director of Public Prosecutions and Others [2008]
1 All SA 229 (SCA)
12 Zuma and Others v National Director of Public Prosecutions [2008] 1 All SA
234 (SCA)
81
13 Thint (Pty) Ltd v National Director of Public Prosecutions and Others; Zuma v
National Director of Public Prosecutions and Others 2009 (1) SA 1 (CC)
14 Thint Holdings (Southern Africa) (Pty) Ltd and Another v National Director of
Public Prosecutions; Zuma v National Director of Public Prosecutions 2009 (1)
SA 141 (CC)
16 National Director of Public Prosecutions v Zuma 2009 (2) SA 277 (SCA)
17 Zuma v Democratic Alliance and Others; Acting National Director of Public
Prosecutions and Another v Democratic Alliance and Another 2018 (1) SA 200
(SCA)
18 S v Zuma and Another; Thales South Africa (Pty) Limited v KwaZulu-Natal
Director of Public Prosecutions and Others [2019] 4 All SA 845 (KZD)
19 Thales South Africa (Pty) Ltd v National Director of Public Prosecutions N.O
and Others [2021] 2 All SA 274 (KZP)
20 Ndluli v Wilken NO en Andere 1991 (1) SA 297 (A)
21 Porritt and Another v National Director of Public Prosecutions and Others 2015
(1) SACR 533 (SCA)
22 Moussa v The State and Another 2015 (2) SACR 537 (SCA)
23 S v Delport and Others 2015 (1) SACR 620 (SCA)
24 S v Van Der Westhuizen 2011 (2) SACR 26 (SCA)

82
25 S v Shaik and Others 2008 (2) SA 208 (CC)
26 Smyth v Ushewokunze and Another 1998 (3) SA 1125 (ZS)
27 Prinsloo NO and Others v Goldex 15 (Pty) Ltd and Another 2014 (5) SA 297
(SCA)
28 Democratic Alliance v Acting National Director of Public Prosecutions & others
(Society for the Protection of our Constitution as amicus curiae) [2016] 3 All SA
78 (GP)
29 King William's Town Transitional Local Council v Border Alliance Taxi
Association (BATA) 2002 (4) SA 152 (E)
30 Golden Arrow Bus Services (Pty) Ltd v City of Cape Town and Others
(11785/12) [2013] ZAWCHC 60 (26 April 2013)
31 Bates & Lloyd Aviation v Aviation Insurance Co 1985 (3) SA 916 (A)
32 Moraitis Investments v Montic Diary 2017 (5) SA 508 (SCA)
33 Gavric v Refugee Status Determination Officer 2019 (1) SA 21 (CC)
34 4 Africa Exchange (Pty) Ltd v Financial Sector Conduct Authority and Others
2020 (6) SA 428 (GJ)
35 Wishart and Others v Blieden NO and Others 2013 (6) SA 59 (KZP)

State's Heads - Zuma S 106 (1) (H) - 12 July 2021

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IN THE HIGH COURT OF SOUTH AFRICA

(KWAZULU-NATAL DIVISION, PIETERMARITZBURG)

In the matter of:

JACOB GEDLEYIHLEKISA ZUMA First Accused

THALES SOUTH AFRICA (PTY) LIMITED Second Accused

THE STATE’S SUBMISSIONS ON FIRST ACCUSED’S SPECIAL PLEA

of section 106(1)(h) of the Criminal Procedure Act 51 of 1977, that

Adv William John Downer SC be removed as the prosecutor in this case as

is removed, that he (Mr Zuma) be acquitted in terms of section 106(4) of the

2. The special plea comprises a plea signed by Mr Zuma 1 and a plea

explanation in the form of a founding affidavit by Mr Zuma. 2 On 26 May

2021, the State delivered an answering affidavit by Mr Downer. 3 On 9 June

2021 Mr Zuma delivered his replying affidavit. 4

3. In paragraphs 1 to 3 of the special plea 5 Mr Zuma contends that Mr Downer

has no title to prosecute as envisaged in section 106(1)(h) of the CPA and

should be removed as the prosecutor in this case for two reasons:

3.1. First, he has a reasonable apprehension that Mr Downer lacks the

independence and impartiality necessary for a lawful prosecution,

more specifically to ensure that his trial is fair and is conducted in

accordance with the Constitution and the common law.

1 Plea in terms of sections 106(1)(h) and (4), pp 1-4

3.2. Second, Mr Downer is an essential witness on the issue whether

there was political interference in the prosecution which has violated

his right to a fair trial in section 35 of the Constitution.

to have Mr Downer removed be successful, he is entitled to be acquitted in

conducted in the circumstances set out in his plea explanation.

5. In paragraph 14 7 and elsewhere in his replying affidavit 8 Mr Zuma claims

on two aspects’, namely ‘whether, as a fact, Mr Downer lacks the

independence and impartiality to conduct a lawful prosecution, even though

he can prove the formal qualifications’ and ‘whether I should be acquitted in

terms of section 106(4)’. Mr Zuma says the latter entails examining

evidentiary hearing be conducted on the issues relating to whether evidence

6. In summary, the State’s answer is the following.

7. First, section 106(1)(h) is not applicable because it is common cause that

Mr Downer is a Deputy Director of Public Prosecutions in the National

Prosecuting Authority, established in terms of section 179 of the

Constitution, who has been designated by the Director of Public

Prosecutions for the KwaZulu-Natal Division of the High Court of South

National Prosecuting Authority Act 32 of 1998 in respect of the prosecution

of the accused in this matter.

lacks title to prosecute as envisaged in section 106(1)(h), Mr Zuma will not

be entitled to demand an acquittal in terms of section 106(4) because the

DPP has designated two other prosecutors to exercise, on behalf of the

it necessary, the DPP may designate another prosecutor as a replacement

for Mr Downer as well.

9. Third, Mr Zuma’s claim that he is entitled to be acquitted in terms of section

in his plea explanation, is in substance a claim for a permanent stay of

prosecution. However, like the second accused Thales, 10 in mid-November

2018 Mr Zuma brought an application for a permanent stay of his

prosecution in this Court. On 11 October 2019 those applications were

(S v Zuma and Another; Thales South Africa (Pty) Limited v KwaZulu-Natal

Director of Public Prosecutions and Others [2019] 4 All SA 845 (KZD). In

Court of Appeal, Mr Zuma withdrew an application for leave to appeal to the

Constitutional Court. Mr Zuma is seeking to use the device of a plea in

terms of section 106(1)(h) and an acquittal in terms of section 106(4) to seek

dismissed on 11 October 2019. Having failed to obtain a stay of prosecution

in recent pre-trial proceedings, he is not entitled to relitigate for a stay under

a different guise at the start of his criminal trial.