President Cyril Ramaphosa and former president, Jacob Zuma. File photo: Waldo Swiegers/Bloomberg via Getty Images
In papers filed in the high court, President Cyril Ramaphosa has reiterated that the bid by former president Jacob Zuma to bring him before court in a private prosecution was vexatious and driven by political motive.
Ramaphosa is asking the Johannesburg high court for an order setting aside the private prosecution as unlawful and unconstitutional in the second part of his legal response to being served with summons by his predecessor on the eve of the ANC elective conference in December.
It was, he said at the time, a desperate political stunt, designed to rob him of a second term as leader of the ruling party.
In mid-January, the high court granted an interdict halting the private prosecution pending the hearing of the second part of his application, in which he advances five reasons it is fatally flawed.
“The purported criminal prosecution is for an ulterior motive and is frivolous and vexatious. It is an abuse of court process,” the president argues.
This is so, he said, because there is no valid criminal offence for Zuma to prosecute with any reasonable prospect of success.
Zuma is attempting to charge Ramaphosa as an accessory after the fact to an alleged violation of the National Prosecuting Authority (NPA) Act. In the alternative, he alleges that Ramaphosa obstructed the ends of justice.
He is pursuing a private prosecution against state prosecutor Billy Downer and journalist Karyn Maughan, charging that they breached section 41 of the Act on 9 August 2021 when a doctor’s letter submitted in support of an application for a postponement in his arms deal corruption trial was released to the media and published. The letter stated that he required treatment for a serious ailment without giving further detail.
Zuma wrote to Ramaphosa and asked that he ensure that an urgent inquiry was instituted into Downer’s alleged misconduct in “colluding” with Maughan to ensure his medical information was published.
Ramaphosa is on record as saying he referred the complaint to Justice Minister Ronald Lamola and advised him 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 National Prosecuting Authority.
Zuma contends that by failing to respond effectively to the demand for an urgent inquiry, Ramaphosa helped Downer and Maughan to evade liability for contravening section 41(6) of the Act. In the alternative, he alleges that Ramaphosa obstructed the ends of justice.
In their heads of argument, Ramaphosa’s lawyers said “it is not a criminal offence to fail to establish a commission of inquiry” and that both being an accessory to a crime and defeating the ends of justice required something more than mere passivity.
“The requirements for the offences of an accessory after the fact and defeating the ends of justice can never be met on the common cause facts. The prosecution could not genuinely be for purposes of obtaining a criminal conviction. It is to harass the applicant for political ends.”
This meant, Ramaphosa argued, that Zuma had no “substantial and peculiar interest” arising from an injury he suffered, as section 7 of the Criminal Procedure Act (CPA) requires in case of a private prosecution, and therefore he lacks standing to bring one.
He is asking the court not only to declare that the summons issued by Zuma are unlawful, unconstitutional, invalid and of no force, but to grant a final interdict barring the former president from pursuing a private prosecution “now or in the future” on the basis of this complaint that informs the purported charge.
He is also asking that the nolle prosequi certificates on which Zuma relied in his attempt to charge him, be declared unlawful and set aside, to the extent that they are interpreted to relate to him.
A nolle prosequi certificate is a prerequisite for a private prosecution. It is issued by the prosecuting authority to confirm that the state has no intention of pursuing a charge against a particular person, and it is only with this in hand that the injured party who wishes to initiate a private prosecution can then approach the court.
But the nolle prosequi certificates proffered by Zuma do not refer to an offence he allegedly committed, Ramaphosa said.
The court papers set out a history of how Zuma obtained the two certificates, and suggest that the second was solicited specifically to allow him to charge Maughan, after she argued that the first — issued on 6 June 2022 — did not refer to her but only to Downer.
“Because of Ms Maughan’s objection, Mr Zuma demanded from the DPP [director of public prosecutions] an amended or new certificate to also include Ms Maughan. The DPP explained that the only suspect before her was Mr Downer SC, and that the certificate related only to him.
“Mr Zuma, through his legal representatives, demanded an amended or new certificate to include Ms Maughan and any other suspect.”
On 21 November last year, a new certificate was issued which refers to a decision not to charge “‘any person” with contravening the NPA Act. Ramaphosa noted that the law dictates that the director of public prosecutions ascertain not only that there is a charge but a person to whom that charge relates.
“In other words, the DPP cannot issue a blanket certificate in the absence of a charge against any person.”
In this case, an affidavit filed by Elaine Zungu, the KwaZulu-Natal director of public prosecutions showed beyond a doubt, Ramaphosa said, that she issued no certificate relating to him and never considered a charge of accessory after the fact, or obstructing the administration of justice.
If she had, he added, “the nolle prosequi certificates that Mr Zuma relies on would have said so”.
Ramaphosa contends that Zuma failed to comply with another requirement in the law, this time in section 9, in that he never paid a security deposit to court, without which a private prosecution cannot be authorised.
The court cannot overlook Zuma’s failure to do so, he argued, while the former president seemingly cannot decide whether he is telling the court that he has paid or that he plans to do so.
“In his answering affidavit, he vacillates between two versions. On the one hand, he has put up security, on the other, he will still do so. Whatever the position, there is no evidence that security was in fact paid, at all.”
Zuma had two summonses issued against Ramaphosa, the first on 15 December last year and the second six days later, in an apparent attempt to cure a defect in the first.
Ramaphosa said it has since been established that the registrar of the court did not issue either. Instead it was done by clerks in his office who treated these as they would have any other ordinary summons.
This meant that they never applied their minds to whether the summonses complied with the requirements set out in section 7 and 9 of the CPA, the president said, stressing:
“It is not a mechanical job to issue summons in a private prosecution.”
The matter will be heard on 17 and 18 May.
In March, counsel for Downer argued in the Pietermaritzburg high court that Zuma’s private prosecution of the veteran prosecutor was plainly instituted for the purpose of further obstructing the arms deal fraud and corruption trial.
“It is part of the strategy which was announced in 2007 by Mr Zuma’s counsel,” Advocate Geoff Budlender SC said.