/ 16 December 2022

Ramaphosa rejects Zuma’s bid to bring private prosecution

Former south African President Jacob Zuma (C-L) greets a delegate during the 55th National Conference of the ANC at the National Recreation Center (NASREC). (Photo by GUILLEM SARTORIO / AFP)

President Cyril Ramaphosa has rejected Jacob Zuma’s attempt, on the eve of the ANC’s elective conference, to add him as an accused in his private prosecution of state prosecutor Billy Downer.

Jacob Zuma’s eponymous foundation announced on Thursday evening that the president is being charged as “an accessory after the fact” and has been summoned to appear in court on 19 January next year. 

The summons was served on Thursday around lunchtime.

Ramaphosa’s office said he rejected “with the utmost contempt Mr Jacob Zuma’s abuse of legal processes and perversion of the ‘nolle prosequi’ provision”.

Presidential spokesman Vincent Magwenya noted that in terms of the Criminal Procedure Act, a private prosecution can only be instituted by an individual who has obtained a certificate of non prosecution from the National Prosecuting Authority (NPA) on the charge in question.

“Mr Zuma has not provided such a certificate with charges in the name of President Ramaphosa,” he added.

“The summons served to the president is hopelessly sub-standard and demonstrates absolute disregard for the law. These charges are completely spurious and unfounded.”

Zuma is basing his attempt to prosecute Ramaphosa on an accusation that the president failed to act after he complained that Downer, the prosecutor in the former president’s arms deal fraud and corruption trial, and a lawyer representing the NPA, advocate Andrew Breitenbach, had behaved improperly.

Magwenya said Ramaphosa responded to the complaint by referring it 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 NPA.

Hence, he did acknowledge Zuma’s complaint, and took such action as is legally permissible.

Academic and analyst Richard Calland said Zuma’s move was a fundamental abuse of the law for a frivolous or vexatious purpose. It was inherently flawed because no criminal offence was disclosed.

The certificate on which Zuma is relying was issued on 21 November, according to his spokesman Mwanele Manyi, and indicates that the NPA does not intend prosecuting anybody for the alleged crime – a contravention of the NPA Act by disclosing a document concerning Zuma’s medical state.

An earlier nolle prosequi certificate named only Downer. Zuma’s legal team then went back to the NPA, after lawyers representing Karyn Maughan, a News24 journalist listed as the second accused, argued that the charge against her therefore stood to be dismissed. 

Calland said the provincial director of public prosecutions should not have issued the certificate.

“There is no legal duty to do so in each and every case, especially when you have good reason to know it will be used to abuse, not to serve, justice.”

He expected Ramaphosa’s lawyers to go to court as soon as possible to have the matter dismissed rather than to wait for January.

Magwenya simply said: “The president will be responding to the summons issued by Mr Zuma.”

The private prosecution of Downer and Maughan has always been seen as a risible attempt by Zuma to further delay the corruption trial. 

It was instituted following the dismissal of his special plea, in terms of section 106(1)(h) of the Criminal Procedure Act, that Downer lacked the standing to prosecute him was dismissed. He attempted to appeal all the way to the apex court but was denied.

Zuma accuses Downer and Maughan of disclosing documents in possession of the NPA without the permission of the national director of public prosecutions. 

At issue is a copy of an affidavit filed by Downer in response to an application from Zuma for a postponement in his corruption trial. Zuma had to his own affidavit attached a letter from a military doctor merely stating that the former president needed urgent treatment for an undisclosed ailment.

It was also attached to Downer’s affidavit. Maughan was given copies of both affidavits by counsel for the NPA. Both affidavits, plus the medical note motivating for a postponement, became part of the public court record before News24 published an 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. 

Zuma, who pleads penury, is reportedly financing the cost of the private prosecution of Downer and Maughan with the help of diamond dealer Louis Liebenberg. A deposit of half a million rand was paid to the high court.

Manyi told the Mail & Guardian it was expected that the surety for adding the president would only become due in coming weeks. Zuma does however have financial backing to see the case through, he said, but declined to name the backer.

He strenuously denied the obvious assumption that summons was served in an attempt to derail Ramaphosa’s re-election as ANC president.

“It is only coming now because the NPA only issued the nolle prosequi certificate in November,” he insisted.

In the meanwhile, Zuma has applied to the constitutional court for leave to appeal the Supreme Court of Appeal ruling in November that his early release on medical parole some two months into his prison sentence for contempt of court was unlawful.

The department of correctional services is also seeking to appeal the ruling.

The appellate court ordered that Zuma return to the Estcourt Correctional Centre where he was jailed last year, after incurring a 15-month sentence for defying a constitutional court ruling to heed summons to testify before the Zondo commission.