/ 10 January 2023

Ramaphosa says Zuma undermined his own case

Zuma Cyril
President Cyril Ramaphosa has reiterated in court papers filed on Tuesday that Jacob Zuma’s attempt to privately prosecute him is flawed in law. (Photo by GIANLUIGI GUERCIA / AFP)

President Cyril Ramaphosa has reiterated in court papers filed on Tuesday that Jacob Zuma’s attempt to privately prosecute him is flawed in law, and said the former president failed in his own court submissions to seriously dispute his court challenge to the summons served on him in December.

Ramaphosa responded to the summons by calling it a stunt designed to stymie his re-election as president of the ANC and by filing a two-part application to the Johannesburg court. 

He is asking the court to set aside the private prosecution as unlawful and unconstitutional, but as a first step is seeking an interdict to halt any further efforts in this direction by his predecessor.

In his replying affidavit to Zuma’s politically-charged answering affidavit, Ramaphosa said the former president did himself a disservice by deliberately framing the case made for setting aside the summons as based entirely on the argument that the private prosecution was pursued with an ulterior purpose and improper motive.

This was not correct and meant that Zuma had failed to address the main reasons the summons should be set aside.

“The result of the first respondent’s approach is that the core grounds on which I challenge the summons have not been seriously disputed.”

What Zuma did was attempt to equate Ramaphosa’s argument that the summons served on him on the eve of the ANC’s elective conference was an abuse of process for an ulterior political purpose, with his own history of claiming that his prosecution for arms deal corruption was politically motivated.

In his own case, Zuma said, the country’s highest courts held that a prosecution could not be halted purely because it was initiated with improper motive. It would only be deemed wrongful if, apart from the impugned motive, there were no grounds for prosecution.

He then went on to allege that Ramaphosa was seeking special treatment from the justice system by advancing an argument “no different from that of mine more than a decade ago”. The issue of improper motive should be decided by a criminal court, he said, and the high court, which is set to hear the president’s application on Thursday, had no jurisdiction in the matter.

But Ramaphosa pointed out that he has accused Zuma of ulterior purpose, not improper motive.

“A proper reading of my affidavit shows that I have alleged ulterior purpose and not improper motive. The cases that the first respondent relies upon on improper motive are irrelevant,” he wrote.

The courts have held that an ulterior purpose can invalidate a criminal prosecution, and the high court had the authority to determine this.

The crime Zuma alleges is that Ramaphosa was an accessory after the fact to the wrongful disclosure of a medical note filed by a military doctor in his arms deal case. In this regard, he has initiated a private prosecution against Billy Downer, the state prosecutor in that trial, and journalist Karyn Maughan, alleging that this medical report was disclosed without the written permission of the national director of the National Prosecuting Authority (NPA).

The report became part of the public court record when Zuma’s lawyers filed it without claiming confidentiality.

A prerequisite for a private prosecution is a nolle prosequi certificate from the NPA confirming that it has declined to prosecute a charge against a specific person. Zuma obtained a second such certificate in November last year, but it does not disclose a charge or the name of any person accused. 

Ramaphosa said this is among the fatal flaws of the prosecution bid. 

“The summons were issued without a valid nolle prosequi certificate that relates to me and a charge against me,” he said.

He further notes that the alleged crime was committed on 9 August 2021 — the date when the media was given access to the doctor’s letter. But the charge he is seeking to bring against the president relates to his alleged failure to act on a Zuma complaint made to him — at a later stage — that Downer had acted improperly.

“It is practically impossible that I could have committed the crime of accessory after the fact or defeating the ends of justice on 9 August 2021, before the request was made to me to intervene,” he said.

“As a result, the nolle prosequi certificates for crimes allegedly committed on 9 August 2021 cannot be used to issue summons for crimes that I allegedly committed after 25 August 2021.”

Zuma clearly alleged in his affidavit that “the accessory crime was committed after 25 August 2021”, but this cannot be, Ramaphosa said.

The result was that the summons was issued without a certificate “that relates to me and a charge against me. The summons and the private prosecution are invalid for this reason alone.”

The certificate itself, which Zuma has read as blanket cover to add further accused in the private prosecution he initiated against Downer, is void for vagueness and an irrational exercise of power on the part of the director of public prosecutions who signed it, the president said.

Ramaphosa said he was also not afforded an opportunity to make written or oral submissions before the document was issued.

“The result is that I have established a strong or exceptional prima facie case for the review or setting aside of the summons under part B.”

He added that Zuma’s attempts to hark back to his own woes with the law were “emotive and contain unfounded political innuendos that are not relevant to the crisp issues” in the current case.

It will be heard by a full bench of the high court.

Regarding Zuma’s allegation that Ramaphosa failed to act on his plea that he address improper conduct on Downer’s part, the president said he responded 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.