Former president Jacob Zuma. (Waldo Swiegers/Bloomberg via Getty Images)
The high court in Pietermaritzburg on Monday set down former president Jacob Zuma’s private prosecution of state prosecutor Billy Downer and News24 journalist Karyn Maughan, for allegedly colluding to disclose his medical records hearing, for 2 February 2023.
In the interim, on 8 and 9 December, the court will hear applications by Downer, the prosecutor in Zuma’s ongoing arms deal corruption case, and Maughan to have the charges he has brought against them dismissed as an abuse of process.
The above was agreed before Judge Nkosinathi Chili in a sitting marked by administrative confusion.
Chill was of the view that the only matter before him was a review application brought by Downer last month for the court to increase the amount Zuma must tender as surety for costs to R1-million from R90 000 to accommodate the fees of the defence’s senior counsel.
The review bid was settled before proceedings because Zuma — who has repeatedly in recent times claimed poverty — agreed to post R500 000. Downer accepted this with the proviso that it does not limit his right to seek costs over and above the sum at the outcome of the trial.
Chill accordingly struck the matter from the role, and Wim Trengove SC, appearing for Downer, informed the court of the thrust of his application for the charges to be dismissed.
They relate to the publication of a News24 article last year citing a letter from a military doctor filed in support of an application by Zuma for a postponement in the arms deal trial in August last year, claiming a serious, unspecified malady.
The letter from Brigadier Mcebisi Mdutywa was attached to affidavits filed by Downer and Zuma’s counsel Dali Mpofu SC in respect of the application and stated that the former president suffered an injury in 2020 that necessitated life-saving treatment that could not be delayed longer.
Zuma claims Downer and Maughan colluded to disclose this without his permission — although the respective affidavits with the letter attached were part of the public court record — and in doing so breached section 41 of the National Prosecuting Authority Act.
Downer and Maughan deny that any crime was committed and that Zuma suffered any harm that entitled him to bring a private prosecution. They note that Zuma’s lawyers did not claim confidentiality when they submitted the letter to court.
Trengove said he would argue that the private prosecution was invalid because Zuma lacked standing under section 7(1)(a) of the Criminal Procedure Act to bring it before court — a reference to the reservation of this route to a litigant who has “a substantial and particular interest” arising from an injury he had directly suffered.
Since Zuma’s rights were not infringed, both accused say, he cannot institute a private prosecution. Trengove said Downer would also argue that the Pietermaritzburg court lacked jurisdiction because one of Zuma’s complaints — that the prosecutor had disclosed information to investigative journalist Sam Sole — stemmed from conversations that allegedly transpired in Johannesburg. Downer was in Cape Town when they spoke.
Mpofu, appearing for Zuma, told the court that Downer and Maughan erred in filing their applications on a civil basis, because these rightly belonged on the criminal roll in the high court. Maughan’s was filed on an urgent basis, and Downer’s for hearing in due course.
He was interrupted by the judge, who reminded him that the point on which he was addressing the court was not allocated to him for hearing.
“I am at sea, the matter which has served before me has now been finalised,” Chill said, referring to the review application on surety. He said he was not dealing with the criminal aspect of the matter.
Trengove said Mpofu’s objection that his client had wrongly filed the interlocutory application in the civil court was misplaced, and they would be happy for it to serve before the trial judge.
“That application has not been characterised as criminal or civil, it is simply a generic application in the high court and it will be determined by whoever the judge president deems appropriate. So we just wish to make clear that it must not be assumed that we intend that application not to be heard before your Lordship.
“In fact it seems to us that it would be a sensible arrangement for your lordship to determine that application as well.”
Steven Budlender SC, for Maughan, said he wished to inform the court that Mpofu was wrong in suggesting that his client had conceded that her application was not urgent because counsel had agreed among themselves to propose that it be heard alongside Downer’s in December.
This transpired after the judge on duty in urgent court on Monday morning, Justice Rishi Seegobin, could not hear the matter because of a conflict of interest.
“There is no agreement that the matter should be heard on the ordinary roll as my learned friend said. Quite the contrary,” he said.
“The notion that Ms Maughan no longer asserts urgency is equally incorrect. Ms Maughan’s position is that the matter is extremely urgent and she wishes to have it heard as soon as possible because her case, as it appears from the papers, is that the application has been brought for the sole purpose of harassing her, intimidating her and preventing her from doing her job.”
After an adjournment and consultation in chambers, Chili confirmed the hearing dates as proposed by the parties.
In the meanwhile, there was the spectacle in court of the spokesperson of Zuma’s eponymous foundation, Mwanele Manyi, and die-hard supporter and disgraced former ANC functionary Carl Niehaus snapping cellphone pictures of Downer and Maughan.
Maughan is routinely singled out for abuse by the camp on social media, and alleges in her application that Zuma is attempting to intimidate her and the media as a whole.
The former president was present in court after being declared a free man by the department of correctional services, having served the remainder of his 15-month sentence for contempt of court on medical parole. The sentence came to an end on October 7, with the supreme court of appeal yet to rule on the department’s challenge to the high court ruling that former director-general Arthur Fraser’s decision to release him on parole was unlawful.
Zuma’s stab at private prosecution is widely seen as a spurious attempt at distraction and delay in the fraud and corruption case that dates back to 2007, when Downer first brought charges against him for accepting bribes, through his financial adviser Schabir Shaik, from French arms manufacturer Thales.
Zuma opened a case with the police in October last year, days before the high court 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.
In his application Downer noted that Zuma’s corruption case has been dragging on for almost two decades, in large part because of the defendant’s “Stalingrad” strategy.
“Mr Zuma’s purpose with his Stalingrad tactic is to avoid at all cost to have his day in court, that is, to face the charges against him. The way in which he does so is to launch and prosecute endless challenges of various kinds,” he said.
“They have varied widely over the years but were all baseless and ultimately failed. They served Mr Zuma’s purposes, however, because he pursued them as far as he could to play for time. Whenever a challenge finally petered out, Mr Zuma initiated a fresh challenge for another round of litigation to avoid ever having to stand trial.”