President Cyril Ramaphosa and former president, Jacob Zuma. File photo: Waldo Swiegers/Bloomberg via Getty Images
President Cyril Ramaphosa has taken the legal position that he is within his rights to ignore Jacob Zuma’s flawed bid to add him as the third accused in a private prosecution, and to take steps to address a patent abuse of process aimed at preventing his re-election as the ANC’s leader.
In a letter in response to summons served on Ramaphosa on Thursday, the eve of the ANC’s elective conference, the state attorney said on behalf of the president: “It is an act that in law may and must be ignored.”
The timing was indicative of a desire to derail Ramaphopa’s bid for a second term as leader of the ruling party.
“It is common knowledge that the president will stand for re-election as presidential candidate. It appears that the purported summons was served to halt this candidature. This is an abuse of process.”
Ramaphosa called on his predecessor to withdraw the summons before Monday, 19 December, and said that should he fail to do so, further steps may follow, including an application for punitive costs.
On the face of it, the letter said, both the delivery and the content of the summons amounted to a violation of the integrity of criminal justice institutions of the country and pointed to multiple breaches of the Criminal Procedure Act.
“We reserve the right to expand on this at the appropriate time and in the appropriate forum,” the state attorney said.
Zuma served summons on the president to appear in the high court on 19 January as “an accessory after the fact” in his private prosecution of Billy Downer, the prosecutor in the former president’s arms deal fraud and corruption trial, and journalist Karyn Maughan.
He claims that he obtained the requisite nolle prosequi certificate, indicating that the National Prosecuting Authority (NPA) did not intend to prosecute the president in the matter, in late November.
But Ramaphosa countered in the letter that the certificate did not pertain to him.
“The document delivered to the president’s private residence did not include a nolle prosequi certificate in relation to him,” it said, with the last four words underlined for emphasis.
“It therefore has nothing to do with the president. The nolle prosequi certificate that is included in the summons concerns a certain Mr Wiliam John Downer.”
And because Ramaphosa was never cited in the matter, he could at any rate not be the subject of such a certificate.
“A nolle prosequi certificate is a basic requirement for a public prosecution. This requirement has clearly not been met. The purported summons lack any legal validity.”
But the letter noted that a private prosecutor also lost standing to pursue a case if the process was informed by improper motive.
“If it is established that a private prosecutor has an ulterior motive with the prosecution, then the title of the prosecutor is lacking,” it said.
Furthermore, the attempt to indict Ramaphosa failed to cite a crime that existed on the law books and was clearly premised on alleged misconduct by the office of the president, and not by Ramaphosa in his personal capacity.
“This mis-citation and non-joinder is also a fatal defect in the indictment and we reserve the right to take all necessary steps in regard to both of these matters.”
Because the summons was flawed, nobody may invoke it to the president’s disadvantage, the letter warned in a clear message to Zuma’s political allies.
“No person is entitled to act on the summons to disadvantage the president or adversely affect his rights.”
Zuma’s private prosecution of Downer and Maughan has been seen as a risible attempt by the former president to further delay his fraud and corruption trial.
It was instituted following the dismissal of Zuma’s special plea, in terms of section 106(1)(h) of the Criminal Procedure Act, that Downer lacked the standing to prosecute him was dismissed. Zuma attempted to appeal all the way to the apex court, but was denied.
Zuma accuses Downer and Maughan of disclosing documents in possession of the NPA without the permission of the national director of public prosecutions. At issue, though, is a copy of a letter from a military doctor which became part of the public court record after it was filed by Zuma’s lawyers in support of an application for a postponement.
The former president’s counsel failed to claim confidentiality when the letter was filed to the court.
Zuma is basing his attempt to prosecute Ramaphosa on an accusation that the president failed to act after he complained that Downer and a lawyer representing the NPA, advocate Andrew Breitenbach, had behaved improperly.
But the president’s office on Friday pointed out that Ramaphosa responded to the complaint by referring it to Justice Minister Ronald Lamola, who has final oversight over the NPA.
He advised Lamola to refer the matter to the Legal Practice Council, noting that he had neither the power nor any intention to interfere with the independence of the NPA.
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