Former president Jacob Zuma. Photo: Supplied
The Johannesburg high court on Wednesday set aside former president Jacob Zuma’s private prosecution of President Cyril Ramaphosa as unlawful and unconstitutional after finding that it was brought with an ulterior motive.
The court dismissed Zuma’s stated reason for serving summons on his successor on the eve of the ANC’s elective conference in December, namely that he needed to get the ball rolling before the holiday season, as “far-fetched”.
“Having regard to the above, this court finds that Mr Zuma instituted the private prosecution of Mr Ramaphosa for an ulterior motive.”
It then follows, it said, that he lacked a peculiar and substantial interest in the issue of the private prosecution instituted against the president.
Zuma purported to charge Ramaphosa as an accessory to the alleged leaking of medical information by Billy Downer, the state prosecutor in his arms deal corruption trial, to the media.
His complaint against the president stemmed from the latter’s alleged failure to hold an inquiry into Downer’s conduct, thereby making himself guilty as an accessory after the fact, alternatively defeating the ends of justice.
Ramaphosa countered that 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 (NPA).
The court held that however “odd” it may be that more than a year after Ramaphosa did so in August 2021, one does not know where that referral led, this does not infer the crime alleged by Zuma.
“Be that as it may, on the present facts, whatever inaction the president may be criticised of in this regard does not amount to associating himself with their alleged criminal conduct or assisting Mr Downer SC and other NPA members to evade justice.”
It noted that Zuma also never bothered to inquire about progress made in investigating his complaint to the president.
“At no point between 21 August 2021 when he requested the president to institute an inquiry and the issuing of summons on 15 December 2022, did Mr Zuma communicate further with the president. He never enquired on the progress made by the minister.
“He never complained that the president’s response amounts to failure to act on his request. Curiously, Mr Zuma is not privately prosecuting the minister to whom his request the president referred.”
Since Zuma’s charge clearly rested on conduct that did not constitute a criminal offence, his attempt to prosecute the president could not lead to a conviction, the court concluded.
“Therefore, the private prosecution constitutes an abuse of process. Hence it stands to be declared unlawful, unconstitutional, invalid, and set aside.”
The court agreed with Ramaphosa that neither of the two nolle prosequi certificates the deputy director of public prosecutions issued at Zuma’s request to confirm that the state would not bring the charges he was wishing to pursue, related to the president.
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.
Zuma also never laid criminal charges with the police against Ramaphosa, it noted.
“He never mentioned Mr Ramaphosa as a possible suspect in his complaint affidavit. He never entered into any correspondence with the office of the DPP [director of public prosecutions] regarding whether the 6 June 2021 nolle prosequi certificate applies to Mr Ramaphosa.”
The second, issued in November that year, again did not name Ramaphosa, but referenced a decision not to charge “‘any person” with contravening the NPA Act. Zuma then used this to single out Ramaphosa for prosecution.
“Among all other persons mentioned, that Mr Zuma only singled out Mr Ramaphosa and suddenly issued summons against him supports the president’s ulterior motive claim.”
So did the timing of the move, which Ramaphosa said was designed to trigger the ANC’s step-aside rule and deny him a second term as president of the ruling party.
“Having waited almost 16 months after requesting the president to institute an inquiry to issue the summons, he has offered no reason why he could not wait until the new year to do so.”
The court awarded costs against Zuma.
The high court last month set aside Zuma’s private prosecution of Downer and journalist Karyn Maughan, again with costs.
There, the court rejected Zuma’s argument that a civil court lacked the jurisdiction to hear twin challenges by Downer and Maughan and that any challenge to a private prosecution could only be brought by way of a special plea, in the Criminal Procedure Act, in the criminal court.
On Wednesday, the Johannesburg high court made the same finding on this argument.
“The core question that arises from the gravamen of Mr Zuma’s case is whether it is improper for Mr Ramaphosa to avoid facing criminal charges by challenging the private prosecutor’s title in the civil court.”
It held that contrary to argument by Zuma’s counsel, a frontal challenge to the private prosecutor’s lack of title to prosecute in the civil court was not novel. Each case was to be determined on the facts, and on those before the court, the argument that Ramaphosa could only raise his challenge in the criminal trial could not be sustained.
“From the merits of this application, it is clear that the present frontal challenge is not brought prematurely. It is brought to enforce the individual rights of the accused person not to be subjected to a clearly unlawful private prosecution process, thus protecting and vindicating the rule of law.”