Johannesburg: Prosecutor Billy Downer could be forced into the dock and
potentially disqualified from leading the corruption case
against Jacob Zuma if the state is stopped from obtaining original evidence from
Mauritius.
State counsel Wim Trengove, SC, yesterday argued in the Constitutional Court
that Downer's cross-examination by Zuma's legal team was one of the scenarios
that could follow if the National Prosecuting Authority was barred from
requesting 14 documents, used to convict Zuma's former financial adviser Schabir
Shaik of fraud, from Mauritian authorities.
Cross-examination of any such witnesses involved in obtaining the documents -
most prominent of whom would be Downer - could then be used as a means of
undermining the state advocate's objectivity.
While Zuma's counsel, Kemp J Kemp, SC, this week shied away from naming Downer
as a possible target, he confirmed that Zuma wanted the right to "cross-examine
witnesses".
Kemp explained the motivation behind Zuma's desire to cross-examine witnesses on
the documents.
"We contend that the copies were brought here in an
improper way *1, that the NDPP (National Directorate of Public
Prosecutions) got its hands on them in an impermissible
manner *2. We have a fair idea of what went on, but we can't present that
to the court.
"If the state does not call witnesses, we cannot cross-examine them."
Kemp added: "We say that the state wishes to avoid a situation where witnesses
are called. We want them to call witnesses.
"We want to preserve and exercise the right to challenge the evidence."
Downer has come under repeated attack from Zuma and French arms company Thint
over the allegedly "unlawful" way he obtained the document copies.
Zuma's legal team contended that the state was attempting to avoid
"cross-examination in Mauritius of witnesses which will expose exactly what
occurred during the first search and seizure and its aftermath (and) which will
impact not only on the procurement of the copies, but also the originals and
even cast a pall over the Shaik proceedings *3."
Thint CEO Pierre Moynot, in an affidavit recently filed before the Mauritian
Supreme Court, has claimed Mauritian authorities only
authorised the search and seizure of the documents and not their copying and
handing over to Downer *4. "I believe that the possession of the
documents by the South African authorities is unlawful," he said, alleging that
the usual diplomatic channels were not followed.
He claimed that initial requests in 2001 by the NPA were denied by the High
Commission of Mauritius in Pretoria. "It was only after the intervention of Mr
Downer (which we believe was not authorised) that the ex parte application was
brought in the Supreme Court of Mauritius on October 5, 2001," he said.
With acknowledgement to Karyn Maughan,
Tania Broughton and Cape Times.
*1Merde a la Kemp.
*2Merde a la Kemp.
*3Merde a la Kemp.
*4Merde a la Moynot.
Anyway, Mr Steynberg is standing by to fill Mr Downer SC's shoes.
Maybe with a bit of help of Mr Trengrove SC.
Now that'll cost o pretty penny.
But it'll be worth it once The State on behalf of The People take away Thomson-CSF's
shares in ADS - that's 80% worth about R100 million.