Prominent journalist Karyn Maughan has filed an urgent application to the Pietermaritzburg high court for the criminal charges former president Jacob Zuma has brought against her in private prosecution to be dismissed.
Maughan said Zuma’s claim that she had leaked medical records confidentially filed to court in his fraud and corruption trial was unfounded, as the letter from a military doctor to which he refers was part of the public court record.
Hence, he had no standing to launch private prosecution as he did not meet the requirement in section 7(1)(a) of the Criminal Procedure Act of holding “a substantial and particular interest” arising from an injury which he had directly suffered.
“None of Zuma’s rights were infringed,” she said in an affidavit filed to the high court.
Zuma has accused Maughan and veteran state prosecutor Billy Downer, who is leading the former president’s prosecution on fraud and corruption charges, of breaching section 41 of the National Prosecuting Authority (NPA) Act by disclosing documents in possession of the authority without the permission of the national director of public prosecutions.
Zuma opened a criminal case against Downer with the police in October, days before the high court predictably dismissed a special plea he had raised that Downer lacked the standing to prosecute the case because he was not sufficiently impartial.
The plea was twofold, with Zuma saying if he succeeded on that argument, acquittal should follow under section 106 (4) of the Criminal Procedure Act, that was seen as another stab at a permanent stay of prosecution, which the appellate court denied him in 2019.
The NPA declined to pursue the charges against Downer, prompting Zuma to apply for a nolle prosequi certificate to pave the way for him to initiate a private prosecution.
In an affidavit filed this week, Downer said he intends vigorously defending the charges, as these were filed in an attempt to delay Zuma’s trial and hence the outcome was a matter of significant public interest.
Maughan, in her papers, not only asks for the summons served on her to be set aside, but seeks an interdict barring Zuma from pursuing any further charges against her. She attached evidence of instances where Zuma’s family and supporters have subjected her to abuse on social media and argues that the case was an attempt to intimidate not only herself, but the media generally.
“That the summons is an abuse of court, obtained for the ulterior purpose of harassing and intimidating me and inhibiting me in the performance of my job as a journalist, is also evidenced by the meritless nature of the charges,” Maughan said.
Maughan was sent an unsigned copy of an affidavit filed by Downer in August last year in response to an application from Zuma for a postponement in his corruption trial. She obtained it from counsel for the NPA with an undertaking not to publish any information therein until it was duly filed to the registrar of the court.
She said timelines set out in her affidavit showed that she respected this undertaking. Moreover, Zuma was aware of this fact.
In his affidavit attached the letter from the military physician, Zuma stated that he needed urgent treatment for an undisclosed ailment.
The same letter was also attached to Downer’s affidavit.
Both affidavits, plus the medical note motivating for a postponement, became part of the public court record before News24 published Maughan’s article on the application for a postponement.
But Zuma is alleging that his medical information was leaked, despite the fact that he failed to claim confidentiality when he filed the letter to the court. The Pietermaritzburg high court dismissed this notion when it dismissed his special plea on Downer’s standing.
Judge Piet Koen said the letter was submitted to Downer “without any specific restrictions as regards confidentiality”.
Koen further held that the letter was vague and general and did not disclose anything that could be said to amount to a violation of Zuma’s rights.
Maughan stressed in her papers: “Thus, at the time I published the contents of Mdutywa’s letter, it had been annexed to both the unsigned and signed affidavits of the state, both of which had already been filed with the court. It was not a confidential record in the possession of the prosecuting authority as contemplated in section 41(6) of the NPA Act. It was a court document, which is a public record.”
She added that Zuma was further precluded from pursuing charges against her by the fact that such was absent from the nolle prosequi certificate he obtained from the NPA.
“It is clear from the wording of the certificate that it does not concern any criminal complaint against me. The only ‘suspect’ mentioned in the certificate in relation to ‘the alleged crime’ is Downer. This is not surprising, as Zuma’s criminal complaint was clearly directed at Downer.”
Downer has filed for a review of the court’s decision to set the sum Zuma has to post as surety for the cost of the case at R90 000. He said it was not sufficient to cover the fees of the defence counsel who would be briefed and asked that it be increased to R1 million.
Downer further submitted that a bank guarantee would be required, given that it was a matter of public record that Zuma had been unable to honour a bank loan to repay a debt to the state that resulted in foreclosure.