Zuma’s swipe at Ramaphosa could open floodgates of vexatious litigation and harassment

Former public protector Thuli Madonsela is the latest to weigh in on former president Jacob Zuma’s charges against President Cyril Ramaphosa, saying they were “odd” and warning on their implications for ordinary citizens.

The Jacob Zuma Foundation last week said it had instituted a private prosecution of Ramaphosa “for being an accessory after the fact in the crimes committed by, among others, advocate [Billy] Downer, namely breaching the provisions of the National Prosecuting Authority (NPA) Act”.

Ramaphosa rejected the prosecution “with the utmost contempt”.

Madonsela questioned the charges against Ramaphosa. “An award for creative reasoning is deserved. How on earth does referring a request to the authorised cabinet member make you an accessory to a non-continuing crime that has allegedly happened?

“Much odder, how does failure to act ultra vires your powers amount to obstructing justice?” Madonsela asked.

The case is a matter of administrative and not criminal law. “Even if by some stretch of imagination wrongfulness was a possibility, this is clearly a matter of administrative law and not criminal law,” she said.

“What is emerging is a regulatory lacuna on private prosecutions. This creative use of the private prosecution mechanism has the potential to not only open the floodgates for vexatious litigation but also to expose ordinary people to harassment through the criminal legal system.”

In a statement on Wednesday, the NPA said nolle prosequi certificates it issued to Zuma and his legal team for the Downer case had nothing to do with Ramaphosa. NPA advocate Rodney De Kock said the authority issued two such certificates in good faith to Zuma in compliance with section 7 of the Criminal Procedure Act.

“These certificates were issued in direct relation to the docket (Pietermaritzburg CAS 309/10/21) which contained statements and affidavits relating to specific individuals for alleged contravention of section 41 (6) read with section 41(7) of the NPA Act.

“The nolle certificates apply to any persons who are specifically mentioned in the docket. The president was not mentioned in any of the affidavits or statements and thus the certificates were not issued in relation to him. Any further clarification will be provided in court should the matter be litigated.”

The former president’s foundation slammed the NPA for denying the nolle prosequi certificate against Ramaphosa, accusing it of picking sides in the battle to criminally charge him.

“Nothing could be further from the truth. The statement is demonstrably false and is nothing but a thinly veiled attempt to rescue Ramaphosa,” said the foundation.

“We challenge the NPA to tell the country whether it is prepared to prosecute Ramaphosa as an accessory after the fact in respect of the offences raised in the police complaint. If so, then the private prosecution must be stopped. If not, then it will have no option but to issue a certificate to that effect, which will bring us to the same position as the present.”

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