/ 13 October 2023

SCA dismisses Zuma’s bid to pursue private prosecution

Jacob Zuma 23
Jacob Zuma. File photo by Mlungisi Louw/Getty Images

The Supreme Court of Appeal (SCA) on Friday dismissed an application by former president Jacob Zuma to halt the implementation of a high court order that prohibited him from pursuing his private prosecution of state prosecutor Billy Downer and journalist Karyn Maughan.

The appellate court held that just as the Pietermaritzburg High Court had found – correctly in its view – that the purported private prosecution was instituted with ulterior motive, the appeal too was in itself an abuse of process and part of the “Stalingrad” litigation strategy Zuma has pursued for some 15 years to delay his arms deal corruption trial.

“In the circumstances, to permit the continuation of a private prosecution pending an appeal as to the lawfulness of that prosecution likely constitutes a direct violation of the constitutional rights of the respondents,” the court said.

It dismissed Zuma’s application with costs, and described his accusation that the high court was biased when it ruled against him as scandalous.

“It is a mere allegation, without any attempt to produce any evidence to justify it. It is improper,” the SCA said.

Zuma accused Downer of leaking a letter by a military doctor, submitted in support of application for a postponement in the arms deal trial in August 2021, to Maughan, who writes for Media24. 

The letter cryptically stated that Zuma needed treatment for an undisclosed ailment, and his lawyers did not claim confidentiality when they filed it to the court. The high court set aside the summons he served on Downer and Maughan in June, holding that the former president had come to court “with unclean hands”.

The court said it was clear that private prosecution was initiated as a “precursor” to an eventual application for the removal of the prosecutor who has pursued the arms deal charges for nearly two decades. 

When Zuma filed for leave to appeal the ruling, both Downer and Maughan successfully applied to the high court in terms of section 18 of the Superior Court Act for the order setting aside summons to remain in force pending the outcome of his appeal against the main judgment.

Zuma exercised his automatic right of appeal to that order and his application was heard by the SCA in late September. His appeal against the main ruling was dismissed a fortnight earlier. Zuma has vowed to pursue that appeal process all the way to constitutional court.

The SCA agreed with the high court that suspending the implementation of the main judgment pending an appeal would have been incompatible with the conclusion that the private prosecution constituted an abuse as it would have allowed said abuse to continue.

“If anything, in the light of the need for the high court to control its own judgments, it may well have been obliged to order the main judgment to be carried into effect to prevent an ongoing abuse. If Mr Zuma’s private prosecution is indeed an abuse of the process as the high court held, then it follows that allowing it to be enforced pending an appeal will prolong and perpetuate that abuse. 

“This will make a mockery of the high court’s judgment and will undermine public confidence in the judiciary’s capacity to control its own judgments and to protect individuals from an abuse of process, including an unlawful, abusive and oppressive private prosecution.” 

The facts showed that the high court assessment was right and a history of the case showed that “on any reckoning, the scale of litigation, which is likely unprecedented in the South African courts, justifiably attracts the epithet ‘Stalingrad’”, the court said.

It said that Zuma risked no harm if ultimately his bid to have the high court ruling prohibiting the private prosecution were to succeed.

“The only conceivable adverse consequence of the execution order on Mr Zuma is that his private prosecution will be delayed until finalisation of the appeal process. The private prosecution is plainly not urgent. Indeed, Mr Zuma instituted the prosecution over a year after publication of the doctor’s note.”

Downer and Maughan on the other hand risked considerable harm if the implementation order were lifted, the court said. It was moreover clear that Zuma immediately moved to appeal the high court’s decision to force the pair to appear in court in the dock the following day, on 4 August.

“This, despite the fact that any appearance on that day would have been only for the sake of a postponement. Mr Zuma had little, if anything, to gain by noting the appeal so speedily. All told, it is hard to resist the conclusion that this appeal is itself an abuse of process.“

By attacking Downer, Zuma was also attacking the National Prosecuting Authority itself, the SCA said.

“The harm to be avoided is thus not only to Mr Downer personally, but also to him in his capacity as the prosecutor in Mr Zuma’s case as well as to the state and to the administration of justice.”

In the case of Maughan, it said, it was worth stressing that freedom of the press and the principle of open justice are closely interrelated. 

“Free speech goes hand in hand with open justice, which is a fundamental principle of the common law. There is a necessary interdependence between the court and the press. It has thus come to be accepted that the media, reporting accurately and fairly on legal proceedings and judgments, make an invaluable contribution to public confidence in the judiciary and, thus, to the rule of law itself.”