/ 16 January 2023

UPDATED: High court grants Ramaphosa interdict pausing Zuma’s prosecution bid

Ramaphosa Anc Gala Dinner 8260 Dv
The president raised several grounds of urgency, the principal argument being that to submit to an unlawful summons would be a violation of his right to freedom. (Delwyn Verasamy/M&G)

The Johannesburg high court on Monday granted President Cyril Ramaphosa an interdict to halt his private prosecution by former president Jacob Zuma, pending the hearing of his challenge to the validity of the summons served on him by his predecessor last month.

It put paid to Zuma’s insistence that Ramaphosa must appear in high court on Thursday, 19 January, as per the summons delivered to him on the eve of the ANC’s elective conference.

Gauteng deputy judge president Roland Sutherland said Ramaphosa had established both that it was urgent that the court grant him an interdict and that irreparable harm would follow if it did not.

The president raised several grounds of urgency, the principal argument being that to submit to an unlawful summons would be a violation of his right to freedom. The court said this ground alone was sufficient to establish urgency.

“It is axiomatic that if the aim is having to appear, even for a formal postponement, the matter before this court is urgent,” Sutherland said, as he delivered the ruling by a full bench of the court.

Dali Mpofu, for Zuma, had argued that there was no material harm in having to appear in a criminal court later this week.

“This contention misses the point. Harm lies not in the temporary inconvenience of physically attending a hearing, if only for a formal postponement, the critical harm concerns a fundamentally, constitutionally guaranteed right to personal freedom,” Sutherland said.

“That value which is foundational to our Constitutional order may never be treated lightly. Our history instructs us that it is a matter of pride that South Africans value and assert our freedom above all other considerations, in the face of whatever adversity we chance to meet. Our law must guard that right and its exercise unreservedly.”

Zuma is attempting to charge Ramaphosa as an accessory after the fact to an alleged violation of the National Prosecuting Authority Act. He has initiated 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 medical report submitted in support of an application in his arms deal corruption trial was released to the media and published.

Zuma wrote to Ramaphosa nine days later 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, 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 National Prosecuting Authority (NPA).

Zuma contends that he failed to respond effectively to the demand for an urgent inquiry, and therefore, either by commission or omission, helped Downer and Maughan to evade liability for contravening section 41(6) of the Act.

Ramaphosa has countered that the bid to charge him is an abuse of process, informed by the ulterior purpose of robbing him of a second term as leader of the ruling party.

He has argued that Zuma lacked standing to pursue the prosecution, because the nolle prosequi certificate which he obtained from the NPA in November, and on which he relies as licence to institute it, did not refer to him or any crime committed by him.

The Criminal Procedure Act makes plain that a private prosecutor may not summons any person to answer a charge in court unless they can show such a certificate, duly signed by a public prosecutor and attesting that the state has seen the affidavit on which the charge is based and declines to prosecute.

“Accordingly, the authority to conduct a private prosecution is one granted to a private person within the four corners of the nolle prosequi,” the high court stressed.

It followed, it said, that a private prosecutor who purports to bring someone before a criminal court without a valid nolle prosecui certificate violates that person’s rights to equality, dignity, freedom and security protected under sections 9,10 and 12 of the Constitution.

“No person is required to subordinate themselves to a private prosecution except where the state has issued a valid nolle prosequi which relates to a crime allegedly committed by that person.”

The court will pronounce on Ramaphosa’s submission that the certificate is invalid for vagueness in part B of his application in which he is seeking an order setting aside the private prosecution as unlawful and unconstitutional. 

He has argued that such a certificate must name the persons the NPA has elected not to prosecute in relation to a particular matter in order to be valid. The president further argued that the crime of an accessory after the fact could only arise after the date on which the principal crime was committed. 

Since the certificate mentioned only the date of Downer and Maughan’s alleged crime, his counsel said, the nolle prosequi could not refer to the president.

The NPA has, Sutherland noted, denied that the certificate tacitly referred to Ramaphosa, but is yet to submit an affidavit

“Whether what the author states is relevant or admissible is itself contested,” he added.

The court said part B of the matter raised novel issues of law, one being whether the issue of a nolle prosequi is administrative action, as this would determine whether Ramaphosa had a right to be heard before it was issued. It is common cause that he was not given the opportunity.

Another is whether criminal liability could accrue to members of the executive for neglecting their duties. 

“This is a proposition that is both novel and radical with extremely wide-ranging implications for the entire state apparatus,” the court said.

Ramaphosa’s counsel, advocate Hamilton Maenetje, submitted that such failure could never invite criminal sanction. In this instance, specifically, the question is whether Ramaphosa could be pursued criminally for not causing an inquiry into the alleged misconduct of the prosecuting authority and the media. Since he could not, the argument went, the nolle prosequi, could not be valid.

The court refrained, for the purpose of deciding whether an interdict should be granted, from pronouncing on whether the merits of any of the president’s grounds for submitting that the certificate were invalid.

But it said none of the claims made are implausible in their own right, regardless of whether they are ultimately found to be incorrect or insufficient to invalidate the certificate.

The court dismissed the basis for Zuma’s argument that the urgency in the matter was self-created as “specious, to say the least” as the president initiated an exchange of legal letters as soon the summons was served. 

And it said Zuma suffered no harm if the private prosecution were delayed in order to debate the legal controversies it raises.  

“The trial of the alleged principal offenders is yet to begin,” Sutherland said in reference to the case against Downer and Maughan. “Their conviction is a necessary condition for criminal liability by the applicant.”

Downer last week filed a supplementary affidavit in which he argues that the timing of Zuma’s bid to prosecute Ramaphosa “demonstrates that it is part of an ongoing abuse of process, this time using the spurious charges against me as a springboard”.

Zuma obtained the certificate in question in November but served summons on 15 December. Given that the ANC’s so-called step-aside rule applies to criminally charged members, Downer said this made it clear that it was done in an attempt to secure a political advantage in the power struggle that played out at the party’s conference. 

“There is no apparent reason why the application was not brought earlier.”

Sutherland ordered that a case management meeting be arranged promptly to set down a hearing date for the second part of the application. 

The presidency said the ruling confirmed Ramaphosa’s view that the private prosecution “is based on spurious and unfounded charges, constitutes an abuse of private prosecution provisions and demonstrates a flagrant disregard for the law”.

  • This article has been updated with comment from the presidency.