The State charged Mr Jacob Zuma (first accused) and Thales South Africa (Pty) Ltd (second accused) with various counts arising from the arms deal. Both accused pleaded not guilty. Mr Zuma additionally raised a special plea in terms of section 106(1)(h) of the Criminal Procedure Act 51 of 1977 (CPA) alleging that the lead prosecutor, Mr William Downer SC, had "no title to prosecute" and should be removed as prosecutor. Mr Zuma demanded an acquittal under section 106(4) if the plea succeeded. The special plea was supported by a founding affidavit exceeding 1400 pages alleging prosecutorial misconduct, bias, lack of independence and impartiality, political interference in the prosecution process, involvement with foreign intelligence agencies, leaks to the media, and various other grounds spanning approximately 15 years. The State opposed the plea. Thales adopted a neutral stance. The special plea was adjudicated on affidavits exchanged between the parties, comprising some 4,230 pages with annexures.
The special plea was dismissed. The matter was directed to proceed to trial on the not guilty pleas of both accused. The court's earlier order of 10 August 2021 (paragraph 3 regarding medical examination) was confirmed as standing, with clarification provided.
This judgment provides comprehensive South African authority on the interpretation of section 106(1)(h) of the CPA, clarifying that 'title to prosecute' relates to formal standing, authority and qualifications, not subjective qualities like bias or independence. It confirms that issue estoppel can apply between civil and criminal proceedings where the same factual issues have been determined, subject to considerations of fairness. It emphasizes that fair trial rights are best assessed at the conclusion of trial on the totality of evidence, not prematurely on speculation. The judgment affirms that alternative remedies (permanent stay applications, recusal applications) exist for complaints about prosecutorial conduct that do not go to 'title'. It reinforces that prosecutorial enthusiasm or perceived lack of complete objectivity does not deprive a prosecutor of title, as prosecutors in adversarial systems are inevitably partisan. The decision also addresses procedural aspects including adjudication of special pleas on affidavit versus oral evidence, and the application of section 173 of the Constitution to regulate court processes in the interests of justice.