Ramaphosa fires back in Zuma private prosecution matter

Former president Jacob Zuma had “deliberately” misconstrued President Cyril Ramaphosa’s court challenge to Zuma’s private prosecution of him, Ramaphosa said in court papers on Tuesday.

While Zuma had made it seem that his case was “entirely” about whether Zuma had an ulterior purpose in prosecuting him, this was only one of the grounds for his legal challenge, Ramaphosa said.

The result of Zuma’s focus on only one aspect was that “the core grounds on which I challenge the summons have not been seriously disputed”, he said.   

Ramaphosa wants the high court in Johannesburg to set aside his prosecution by Zuma, which seeks to put him in the criminal court dock on January 19, as unconstitutional and unlawful. He has urgently asked for an interim interdict to prevent any “further steps” in pursuing the prosecution and to excuse his appearance in court on the 19th.  

Ramaphosa was replying to Zuma’s answering affidavit in which Zuma pulled out all the stops to counter Ramaphosa’s claim that his prosecution was brought for the ulterior purpose of scuppering Ramaphosa’s re-election as ANC president in December.

In his answering affidavit on Friday, Zuma claimed Ramaphosa was seeking special treatment from the courts because he is the president, and that when Zuma sought to quash his own prosecution because he thought it was politically motivated, he was rejected by the courts.

A civil court does not have jurisdiction to quash a criminal charge before an accused had pleaded, said Zuma.

But Ramaphosa said Zuma had got things wrong in a number of respects. In the first place, ulterior purpose was only one of his grounds. Another main pillar of his case was that Zuma had not met the requirements for a valid private prosecution.

These included that a director for public prosecutions must have declined to prosecute an offence against a specific person, and issued a nolle prosequi certificate “in respect of that offence and that person”.

“This specificity ensures that summonses to commence private prosecutions comply with the rule of law.” This had not happened here, said Ramaphosa.

Zuma’s criminal charge is that Ramaphosa is an “accessory after the fact” in relation to charges he is pursuing against prosecutor Billy Downer and journalist Karyn Maughan.

In a separate private prosecution, he has charged the two with contravening the National Prosecuting Authority Act over the disclosure, without the written consent of the National Prosecuting Authority’s national director, of a medical report later filed in court during Zuma’s criminal trial for corruption.

Ramaphosa’s alleged crime is that when Zuma’s lawyers wrote to the president to complain about Downer and demanded an investigation, Ramaphosa failed to act.

Ramaphosa disputed Zuma’s claim that the nolle prosequi certificates issued in the Downer/Maughan prosecution were sufficient to prosecute Ramaphosa as an accessory.

Ramaphosa also said Zuma had, in his answering affidavit, referred to cases that dealt with prosecutions brought with an improper motive. But there was a difference in law between prosecutions brought with an improper motive and those brought with an ulterior purpose: the law allowed prosecutions in the latter category to be quashed.

He differentiated between private and public prosecutions, saying private prosecutions were valid only if they met the requirements under the Criminal Procedure Act — so Zuma’s case did not even “get out of first base”. Also, there were “several” cases that showed that civil courts did have jurisdiction to determine the validity of a private prosecution and to “set it aside or interdict it”, Ramaphosa said.  

The interim interdict part of the application is set to be heard on Thursday before deputy judge president Roland Sutherland and judges Edwin Molahlehi and Marcus Senyatsi.