Durban – Former President Jacob Zuma’s Advocate Dali Mpofu told a full bench of three judges in the Pietermaritzburg High Court on Wednesday that Arms Deal trial prosecutor Billy Downer was not absolved from Zuma’s private prosecution matter – even if he did not personally hand confidential information to a journalist.
Zuma claims senior state advocate Downer and journalist Karen Maughan both contravened the NPA Act because Downer, as an accessory, leaked a report disclosing his confidential medical condition to Maughan.
On Monday, Maughan and Downer’s lawyers argued, in separate applications, that Zuma’s summons should be dismissed, while they also asked for interdicts stopping him from taking any similar action against them.
On Monday, Maughan’s advocate, Steven Budlender, argued that she had not received the document from Downer but from advocate Andrew Breitenbach, a member of the senior state advocate’s team.
Mpofu on Wednesday said this was “neither here nor there” and the fact was that “Breitenbach or someone else in the NPA, without the permission of the national director of public prosecutions, disclosed to any other person” confidential information.
The section of the NPA Act which the Zuma private prosecution is based on states that:
“(6) Notwithstanding any other law, no person shall, without the permission of the national director or a person authorised in writing by the national director, disclose to any other person – except:
1. (a) Any information which came to his or her knowledge in the performance of his or her functions in terms of this act or any other law.
2. (b) The contents of any book or document or any other item in possession of the prosecuting authority.
3. (c) The record of any evidence given at an investigation as contemplated in section 28 (1).
4. (i) For the purpose of performing his or her functions in terms of this Act or any other law.
5. (ii) When required to do so by order of a court of law.“
Mpofu said the provisions of the NPA Act make it a criminal offence for a prosecutor to disclose “any information” in possession of the NPA to an external party. He says this statute was enacted to ensure the fairness and integrity of the NPA.
Mpofu said if Maughan was leaked information from a State prosecutor “and in her good judgement she did not publish and never wrote a story, the crime would still be complete because it’s the disclosure of the information”.
“That statute was enacted to ensure prosecuting authorities are independent, non-partisan and do their jobs professionally,” Mpofu said.
The case is continuing.