In his special plea, Zuma contended that Downer should be removed because Zuma had a reasonable apprehension that Downer lacks the independence and impartiality necessary for a lawful prosecution.
In his answering affidavit to the special plea, dated June 1, Downer said Zuma did not call into question his admission as an advocate, nor his designation by the director of public prosecutions, to conduct this prosecution on behalf of the state.
“Instead the first accused [Zuma] relies on contraventions of his rights and especially his right to a fair trial which he alleges will ensue if I conduct the prosecution for the state; and, further, on his allegation that I will be an essential witness on the issue of whether his right to a fair trial has been violated,” Downer said.
He said that if an accused believed the prosecutor assigned to his case would not exercise their duties impartially and without fear, favour or prejudice, the accused may bring an application to the court for an order that the prosecutor be removed and replaced.
“What such an accused may not do, however, is seek such removal through the device of a special plea in terms of section 106(1)(h) of the CPA.”
Downer said the special plea was not based on his lack of title to prosecute as envisaged in section 106 (1)(h). “For this reason alone, I submit, the special plea should be dismissed and the first accused is not entitled to demand an acquittal.”
He said Zuma would not be entitled to demand an acquittal in the event that his special plea succeeded because the state has designated two other prosecutors to prosecute him and Thales.