Former president Jacob Zuma. (Phil Magakoe/Reuters)
Counsel for President Cyril Ramaphosa told the Johannesburg high court on Thursday he should be granted an urgent interdict to halt former president Jacob Zuma’s bid to haul him before court in a private prosecution as it infringed on his constitutional rights and affected the country as a whole.
The law shielded the president from having his personal freedom restricted — in the sense of an obligation to appear in court as per summons served by Zuma — and his dignity and reputation compromised in a private prosecution that did not comply with section 7 and 9 of the Criminal Procedure Act (CPA), Ngwako Maenetje SC argued.
He stressed that the same protection applied to any other person accused in a purported private prosecution because, in such instances, the law imposed hurdles on the accuser that did not apply when the state exercised its right to prosecute.
Here Maenetje was countering an argument by Dali Mpofu SC, for Zuma, that Ramaphosa should be treated no differently from the scores of accused summonsed to appear in court every day on charges instituted by the National Prosecuting Authority (NPA).
“A private prosecution is different … Those are instituted by the rightful authority under the Constitution. He wants to bypass that framework under the Constitution. The courts can’t let that happen.”
He said the CPA set preconditions for a private prosecution precisely to prevent potential harassment by a private party, “who may be motivated by private interests” because, if the rule of law were to be flouted in this manner, it would be a recipe for a constitutional crisis.
The first requirement, as set out in section 7 of the Act, was a valid nolle prosequi certificate, confirming that the NPA has declined to prosecute a specific person or persons for the alleged crime described.
Zuma did not have such a certificate that referred to Ramaphosa, hence he did not get out of the starting blocks and both the summons and the purported prosecution were rendered unlawful.
Maenetje said his client therefore had “a prima facie right to be protected from a private prosecutor acting illegally”.
If the court failed to grant an interdict, and he were compelled to appear in a criminal court, his rights would be irreparably harmed before part B of his application for an order declaring the private prosecution unlawful and unconstitutional could be heard.
“We cannot be hauled before unlawful private criminal law proceedings. He is entitled to approach this court to prevent his rights from being trampled upon by a private prosecutor,” he said.
“By the time the application to set aside the summonses and the certificates is heard, the unlawful private prosecution, in breach of the applicant’s rights, will have progressed. The applicant’s constitutional rights, dignity and reputation will have been irreparably harmed.”
Ramaphosa’s ability to travel to perform his duties as president would be compromised, he added.
“This is inherently and seriously prejudicial both to the applicant’s person, as well as to the republic and its citizens.”
Zuma served summons on Ramaphosa on the eve of the ANC national conference last month and the president promptly termed it a political stunt, designed to stymie his re-election as leader of the ruling party.
He is attempting to bring the two alternative charges against the president, stemming from what he deems as an unlawful disclosure of a medical certificate dated 8 August 2021 that was submitted to the Pietermaritzburg high court in the court of his arms deal corruption trial.
Zuma alleges that the following day, state prosecutor Billy Downer disclosed the medical report to journalist Karyn Maughan without the written permission of the head of the national director of public prosecutions, which is a prisonable crime in terms of section 41(6) of the NPA Act.
Zuma wrote to Ramaphosa 10 days later, asking that he order an investigation into misconduct on the part of the NPA, and the president referred this complaint to Justice Minister Ronald Lamola.
Soon thereafter, Zuma brought charges of contravening section 41 against Downer and Maughan, and when the NPA declined to prosecute them, instituted a private prosecution that will be heard next month.
He is alleging that Ramaphosa unlawfully and intentionally contravened the same section of the NPA Act as an accessory after the fact. The alternative count is that the president defeated the ends of justice.
Zuma in June last year obtained a nolle prosequi certificate with respect to Downer. When Maughan argued that his attempt to prosecute her was unlawful because she was not cited in the certificate, he went back to the NPA and in November another certificate was issued, stating that it declined to charge any person with the alleged crime.
Maenetje said Zuma was now attempting to repurpose this certificate to charge Ramaphosa but he cannot because it does not name the president or relate to the offence of which Zuma accuses him.
Gauteng deputy judge president Ronald Sutherland noted that on Zuma’s argument this was a “petty interpretation” and asked why the certificate could not be read in a purposive fashion to include any person who may have been involved.
But the advocate replied that even if this argument were to find favour, the rest of the contents of the certificate still put Ramaphosa beyond its reach.
This was so because it referred to an alleged crime committed on 9 August, whereas the wrong Zuma accused Ramaphosa of could only arise more than a fortnight later when he approached the president, who allegedly failed to act.
Mpofu, for Zuma, replied to this by saying an understanding of English and elementary law was enough to know that someone became an accessory to a crime, at a later stage, without meeting one of the elements of said crime.
“My learned friend says … section 46(1) that crime is for officials of the NPA, therefore Cyril Ramaphosa cannot be guilty of that,” he said.
“It is fallacious logic, because that is exactly why the common law created this thing called accessory after the fact. It is to cater for those situations where the accessory does not meet one of the elements, such as working for the NPA.”
The president’s complaint that the nolle certificate was invalid was therefore baseless.
With regard to Ramaphosa’s claim to urgency, Mpofu said it was self-created. If the president believed urgent relief was due, he would have approached the court immediately and not after the ANC conference, especially since he argued that the private prosecution was initiated with the ulterior purpose of scuppering his re-election as president of the ruling party.
But Maenetje said urgency had not fallen away because the risk that Ramaphosa would be compelled, under the ANC’s step-aside rule, to relinquish his position, remained for as long as the private prosecution was pending.
“The ANC’s step-aside rule remains relevant for as long as the applicant is compelled to attend criminal court on 19 January 2023 and remain in attendance.”
Should that happen, he said, his client believed that Zuma would be among the first to demand that he step aside not only as president of the ANC but of the country.
Mpofu replied that this threat would not be removed by the interdict Ramaphosa was seeking, therefore it was nonsensical to plead this potential harm as grounds for granting one.
“The step-aside rule does not say you must step aside if you appear in court, it says you must step aside if you are charged.”
It could not be removed by the interdict Ramaphosa was seeking, therefore it was nonsensical to plead this potential harm as grounds for granting one.
As a parting shot, Mpofu accused Ramaphosa of resorting to Stalingrad tactics by turning to a civil court with an interlocutory application with the aim of delaying a criminal matter. It was the typical recourse of those rich enough to afford the best legal counsel, added the lawyer who is regarded as the past master of precisely this approach.
Maenetje countered in closing that there was no case law that denied Ramaphosa relief when the charge was flawed and brought in a hotly contested political sphere where “people use all that is at their disposal to disadvantage their opponents”.
The aim of the respondent, he said, was to stand the president up in criminal court as an accused for political effect.
Judgment, by a full bench, will be delivered on Monday.