/ 18 May 2023

Zuma’s summons of Ramaphosa has never had foundation, says president’s lawyer

Zuma Ramaphosa 0839
Indefatigable: Former president Jacob Zuma seems to be hoping for a defeat of his adversaries in the party he may or may not still be a part of.

Every document former president Jacob Zuma relied on to bring a private criminal prosecution against President Cyril Ramaphosa proved that it was without foundation, counsel for the president told the Johannesburg high court on Wednesday.

Hamilton Maenetje SC said the summons served on Ramaphosa in December was unlawful because the nolle prosequi certificate that informed it did not refer to the president or to the charge Zuma has levelled against him.

A nolle prosequi certificate is issued by the prosecuting authority to confirm that the state has no intention of pursuing a particular charge against a person, and it is only with this in hand that the injured party who wishes to initiate the prosecution can approach the court.

“He can’t use this certificate to mount a lawful private prosecution and for that the registrar acted unlawfully in issuing this because the law is quite clear, no person shall take out a summons without a nolle prosequi and that must be a nolle prosequi that is applicable to the person who you authorise to be criminally prosecuted by a private individual,” he said.

“So we submit with great respect that the case ends right here without a nolle prosequi.”

KwaZulu-Natal director for public prosecutions Elaine Zungu, who issued the nolle prosequi certificate in question on 21 November last year, has submitted an affidavit to the court that the document “cannot be interpreted to relate to the applicant”. Advocate Frank Mothibedi, for the NPA, on Wednesday told the court that Ramaphosa was at no point considered a suspect.

The president is asking the high court to set aside the private prosecution as unlawful and unconstitutional in the second part of an application filed soon after he was summonsed on eve of the ANC’s elective conference. 

In January, the high court granted him an interdict halting Zuma’s prosecution bid pending the hearing of the application for final relief.

Zuma accuses Ramaphosa of being an accessory after the fact to an alleged violation of the National Prosecuting Authority (NPA) Act by Billy Downer, the state prosecutor in his arms deal fraud and corruption case. 

He has charged Downer and journalist Karyn Maughan with contravening section 41 of the Act, because she was given a copy of an affidavit filed to court on 9 August 2019 in response to an application by Zuma for a postponement in his arms deal corruption trial. The document included a copy of a cryptic doctor’s letter he submitted in support of a postponement.

On 19 August, Zuma wrote to Ramaphosa and asked that he institute an urgent inquiry into Downer’s alleged misconduct in “colluding” with Maughan to ensure his medical information was published. 

A week later, Ramaphosa replied that he had referred the complaint to Justice Minister Ronald Lamola and advised him to refer the matter to the Legal Practice Council.

“That is perfectly lawful and it is consistent with our constitutional framework,” Maenetje said.

But Zuma contends that by failing to respond effectively to the demand for an urgent inquiry, Ramaphosa helped Downer and Maughan to evade liability for breaking the law. In the alternative, he alleges that the president obstructed the ends of justice.

Maenetje said the president was bringing the application both to protect his constitutional rights and to vindicate his obligation as head of state to defend and uphold the constitution, which is premised upon respect for the rule of law.

“There are sufficient facts to establish that even the office has a direct interest in the potential impact of the unlawful private prosecution”.

This was so because Zuma’s approach was an affront to the rule of law, as it was based on the ulterior, political motive of preventing the president’s re-election as leader of the ruling ANC for a second term. Courts should not be used to settle political scores, Maenetje said.

He then asked rhetorically why Zuma had suddenly decided “overnight” to find Ramaphosa’s conduct criminally liable though the president had months earlier promptly responded to his complaint by referring it to Lamola.

Papers before the court set out a history of how Zuma obtained the two nolle prosequi certificates he has used to lay charges against Downer and Maughan. This timeline suggests that the second was solicited specifically to allow him to charge Maughan, after she argued that the first — issued on 6 June 2022 — did not refer to her but only to Downer.

“Because of Ms Maughan’s objection, Mr Zuma demanded from the DPP [director of public prosecutions] an amended or new certificate to also include Ms Maughan. The DPP explained that the only suspect before her was Mr Downer SC, and that the certificate related only to him.

“Mr Zuma, through his legal representatives, demanded an amended or new certificate to include Ms Maughan and any other suspect.”

The certificate issued on 21 November last year, refers to a decision not to charge “‘any person” with contravening the NPA Act. But Maenetje said the law did not allow the director of public prosecutions to issue “a blanket certificate” and by no stretch could what she signed be read as referring to Ramaphosa.  

Moreover, the sworn statements that Zuma gave to the police when opening a docket regarding the alleged crime, made no mention of the president. These formed the basis for his approach to the director of public prosecutions after the police declined to take the matter further.

Dali Mpofu SC, for Zuma, said this was essentially a non-argument, because by definition the crime of accessory after the fact arose at a later stage, with the aim of allowing the perpetrator to escape liability.

When Judge Lebogang Modiba noted that Zungu had not considered the charge of accessory after the fact when she issued the nolle prosequi certificate in November, Mpofu responded: “My Lady, that is her problem and I’m not being rude.” 

He went on to call Zungu a liar. 

Modiba and counsel for the NPA objected but the gallery cheered at his remarks, leading the bench to caution Mpofu that the proceedings were “not a circus”. Modiba told Mpofu to mind his language and to treat her with respect.

Mpofu denied that the case was driven by ulterior purpose, but said even if it were true, there was legal precedent that presence of such did not per se render a prosecution invalid.

He was referring to a supreme court of appeal (SCA) ruling in 2009 where the court upheld an appeal by the NPA against a court decision to set aside the arms deal charges against Zuma. It said: “A prosecution is not wrongful merely because it is brought for an improper purpose. It will only be wrongful if, in addition, reasonable and probable grounds for prosecuting are absent.”

The SCA commented in the same judgment that the litigation between Zuma and the NPA “has a long and troubled history and the law reports are replete with judgments dealing with the matter”. 

That Mpofu is citing the ruling in a private prosecution that stems from Zuma’s relentless quest to discredit the prosecutor in the arms deal case is testament that it continues.

In March, Geoff Budlender SC, for the NPA, told the Pietermaritzburg high court Zuma’s private prosecution of Downer was an abuse of process and the latest episode in more than 18 years of attacking the veteran prosecutor.

“He launches his challenges one by one, each one starts only when the last one is finished, as in [it] has failed,” Budlender said.

“It is part of the strategy which was announced in 2007 by Mr Zuma’s counsel.”

Recently, it has included an ultimately unsuccessful special plea in terms of section terms of section 106 (1)(h) of the Criminal Procedure Act in which he argued that Downer was not sufficiently impartial and therefore lacked title to prosecute him.

Mpofu on Wednesday raised this section of the Act when he argued that the civil court had no jurisdiction over a private criminal prosecution and that Ramaphosa should similarly have launched a section 106 challenge if he wanted to argue that Zuma lacked the standing to prosecute him.