Despite four court rulings slamming Jacob Zuma's private prosecution of state advocate Billy Downer and this writer as "an abuse of process," the former president's lawyers unsuccessfully argued both must sit in the criminal dock when the invalidated case returned to court.

Kwazulu-Natal High Court in Pietermaritzburg Judge Nkosinathi Chili was also not convinced by Zuma's advocate Dali Mpofu's arguments that Downer and this writer must be ordered to appear in court when the private prosecution returns to court on 9 April 2024.

Instead, the judge directed "that the parties will be represented by their respective legal representatives on the day."

In contrast to previous hearings, Chili did not warn Downer or this writer that we faced the prospect of an arrest warrant being issued against us if we were not in court when the case returned to court.

While Wednesday's court hearing was expected to be brief, it ended up being dragged out by a demand by Mpofu that Downer and this writer be forced to sit in the "criminal dock" because the former president was seeking to appeal against the rulings that invalidated his private prosecution as an abuse of court process pursued for "an ulterior purpose."

Last month, the Supreme Court of Appeals (SCA) endorsed a High Court in Pietermaritzburg full Bench's findings that Zuma had pursued the "hopeless" case – where he contended that Downer and this writer should face 15 years in jail for alleged violations of the National Prosecuting Authority Act – as a continuation of his so-called "Stalingrad" litigation strategy.

While Zuma has claimed that these alleged violations were the result of Downer being aware that NPA counsel Andrew Breitenbach had shared court papers - containing a sick note from his doctors - with this writer, four court rulings have now confirmed there was no merit to these accusations.

"The private prosecution is without any foundation in either fact (Mr Downer did not disclose Mr Zuma's doctor's report to Ms Maughan, and there was no breach of confidentiality or privacy) or law (no cognisable offence has been committed, even if all of the facts alleged by Mr Zuma are true). [Downer and Maughan] appearing as accused persons in an abusive private prosecution will undeniably compromise public confidence in the courts and the administration of justice," the SCA stated.

Despite this decision, Mpofu on Wednesday said the failure of Downer and this writer to sit in the dock amounted to "clear defiance" of the court "in broad daylight."

"All that's happening here is obfuscation and defiance of the court, deliberately," he said, before condemning both Downer and this writer as "arrogant."

"It may look trivial, but we are here to protect the integrity of our courts and the integrity of your Lordship from this abuse that is happening here," he told Chili.

But the judge was not convinced by these arguments.

Instead, he referred to the SCA's recent unanimous endorsement of a High Court in Pietermaritzburg full Bench's orders that the invalidation of Zuma's private prosecution be enforced, even as the former president sought to appeal that invalidation.

The judge quoted from the SCA's enforcement ruling, which he said, "When dealing with Mr Downer and Ms Maughan's constitutional right to dignity pointedly states… that [o]n each occasion that the respondents [Downer and Maughan] are compelled to appear in the criminal dock, their personal liberty is further inhibited and human dignity further eroded."

The judge added that he was "alive to the fact that that judgment is being taken on appeal, however, I hold the view that where a person's constitutional rights are at stake, it is better to err on the side of caution."

He concluded, "I do not therefore consider it just, for the purposes of the present application, to order Mr Downer and Ms Maughan to sit in the dock as accused persons. Mr Mpofu’s request is therefore refused."

The decision followed arguments by counsel for this writer Tembeka Ngcukaitobi that, in deciding whether Downer and I should sit in the dock, Chili would have to decide whether there was a "valid prosecution" against us. The only way the judge could compel us to sit in the dock, he said, was if such a "valid prosecution" existed.

"Once you have decided that in our favour, she [Maughan] is correct where she is sitting [not in the dock]," he added, before arguing that – by trying to force Downer and this writer into the dock before this question was answered – Mpofu was trying to "jump the gun".

Ngcukaitobi maintained that there was no valid private prosecution ''in law" against either of us.

"There are four rulings in this case against Mr Zuma. Four. They all make it clear that there is no valid private prosecution," he said.

The advocate then referred to the SCA’s endorsement of the ruling that ordered immediate implementation of the invalidation of Zuma’s private prosecution – and said it made it clear that continuing to force this writer to be subjected to an abusive and invalidated private prosecution would itself be an abuse.

"If you direct Ms Maughan… to sit in the criminal dock, the Supreme Court of Appeal has told you that you are inhibiting her human dignity and eroding her personal liberty, because you are subjecting her to an abuse in the hands of Mr Zuma," Ngcukaitobi said.

Chili, it appears, took those words to heart and did not acquiesce to Mpofu’s demand that Downer and this writer must continue to attend the postponements of his private prosecution in person, much to the advocate’s obvious chagrin.

While the High Court in Pietermaritzburg refused to grant Zuma leave to appeal the invalidation of his private prosecution, he is now petitioning the SCA to hear the case.

Last week, he applied again for Downer to be removed as the lead prosecutor in his Arms Deal corruption trial, on the basis that the mere fact he was seeking to privately prosecute him was enough to justify his removal.

Judgment in that case has been reserved.