/ 7 June 2023

High court halts Zuma’s prosecution of Downer and Maughan

Safrica Court Politics Corruption Trial Zuma
Former president Jacob Zuma. (Photo by Jerome Delay / POOL / AFP)

The Pietermaritzburg high court on Wednesday set aside summonses served by Jacob Zuma on state prosecutor Billy Downer and journalist Karyn Maughan and interdicted the former president from pursuing the private prosecution he instituted against them.

A full bench of the court awarded costs against Zuma.

Downer, the prosecutor in Zuma’s arms deal corruption case, and Maughan submitted that the charges of breaching the National Prosecuting Authority Act he sought to bring against them were an abuse of process and that he lacked standing, in terms of section 7(1)(a) of the Criminal Procedure Act (CPA) to institute a private prosecution.

The court rejected Zuma’s argument that a civil court lacked the jurisdiction to hear the applications brought by Downer and Maughan and that any challenge to his private prosecution could only be brought by way of a special plea, in the CPA, in the criminal court.  

It noted that his argument to the same effect in his attempt to bring a private prosecution against President Cyril Ramaphosa on a related charge, was recently rejected by the high court, and said it agreed with that ruling.

“This point in limine has no merit and is to be rejected.”

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.

In an argument before the court in March, Zuma’s  counsel, advocate Dali Mpofu, sought to persuade the court that it did not matter that it was not Downer who sent Maughan the affidavit he had filed in response to Zuma’s application on 9 August, but Andrew Breitenbach SC.

Breitenbach, in affidavit, took responsibility for giving the court papers to Maughan and made clear that he did not seek Downer’s permission to do so, but mentioned it to him later. 

Geoff Budlender SC, for Downer, told the court: “That really is the end of the case.”

Zuma attempted to charge Ramaphosa as an accessory after the fact to an alleged violation of the NPA Act, claiming that Ramaphosa failed to respond appropriately to his demand that an urgent inquiry was instituted into Downer’s alleged misconduct in “colluding” with Maughan to ensure his medical information was published.

Zuma served summons on Ramaphosa on the eve of the ANC’s elective conference in December. The president argued in court that this was a political stunt, designed to rob him of a second term as leader of the ruling party.

In mid-January, the Johannesburg high court granted an interdict in Ramaphosa’s favour halting the private prosecution pending the hearing of the second part of his application, in which he advances five reasons why it is flawed. 

Among them, was that Zuma lacked standing to institute a private prosecution in terms of section 7 of the CPA because there was no valid nolle prosequi certificate from the NPA referring to a crime the president allegedly committed. In her application, Maughan had made the same argument. 

The CPA makes plain that a private prosecutor may not summon any person to answer a charge in court unless they can show such a certificate, duly signed by a public prosecutor and attesting that the state has seen the affidavit on which the charge is based and declines to prosecute.

A timeline set out in court papers of how Zuma obtained the two separate nolle prosequi certificates, suggested that after he obtained the first, which only mentioned Downer, on 6 June 2022, he solicited a second specifically to allow him to charge Maughan.

But the second, issued on 21 November, merely refers to a decision not to charge “any person” with contravening the NPA Act. 

“Maughan is therefore clearly not named or referred to as a suspect or accused in the complaint,” the high court said.

“We are accordingly of the view that the respondent, Zuma, had failed to produce any nolle prosequi certificate which would entitle him to institute a private prosecution against Maughan. The summons issued against Maughan is therefore unlawful and is to be set aside.”

Turning to the argument made out by Maughan and Downer that Zuma had failed to satisfy the requirement in the CPA that a private prosecutor must show that he had a substantial and peculiar interest arising out “an injury” suffered as a result of the conduct of the accused, the court noted that the medical letter was a public document, and furthermore vague.

Zuma claimed that he encountered unfair criticism for seeking a postponement in the arms deal case but the court said this was not a consequence of Maughan obtaining a copy of the letter, and whatever harm Zuma claimed to have suffered did not constitute an injury in terms of the Act.

Maughan pleaded that Zuma’s case against her was brought for the ulterior purpose of intimidating her and preventing from covering his criminal trial.

The court said it should be noted that Zuma failed to answer any of the allegations put forth by her and Downer.

“The answering affidavit is replete with repetition, namely that matters will be addressed in the trial court and are denied,” it said.

“There are blanket, bald denials of material allegations without laying any factual basis therefore or any explanation to justify his denials.”

The judgment disagreed with Zuma’s argument that the motive for bringing a private prosecution was irrelevant, citing legal precedent where the courts have held that motive and merits play a role in determining whether a prosecution is an abuse of process.

The court said it was clear that Downer was Zuma’s true target, and that the private prosecution was initiated as the “precursor” to his subsequent application in the criminal court for the removal of the prosecutor who has pursued the arms deal charges for nearly two decades. 

It found that Zuma came to the court with “unclean hands” and agreed that consequently the private prosecution was an abuse of process.