The interim interdict was granted by judges Roland Sutherland, Edwin Molahlehi and Marcus Senyatsi to allow Ramaphosa time to challenge the lawfulness of Zuma’s right to privately prosecute the President.

Ramaphosa was expected to present himself before a criminal court on Thursday, 19 January, based on a summons issued in December 2022.

Sutherland said there was no other form of relief that Ramaphosa could seek other than the interim interdict. 

“This we take to be axiomatic as it would require [Ramaphosa] to appear before criminal court and by so doing implicitly submit to a process which he claims is unlawful. Were [Ramaphosa] to succeed later to have the private prosecution declared invalid, the harm of the submission to unlawful action cannot be undone,” said Sutherland.

Sutherland ordered both parties to “immediately approach the Office of the Deputy Judge President in Johannesburg” to arrange a case management meeting to set “an agreed date for the hearing” where the merits of Ramaphosa’s claims could be properly argued. 

The former president has accused Ramaphosa of being an accessory after the fact to criminal conduct or, alternatively, of defeating or attempting to defeat the ends of justice, relating to the alleged unauthorised disclosure of medical information in Zuma’s private prosecution of veteran prosecutor Billy Downer — who will be prosecuting the Arms Deal graft trial in which Zuma is accused number one — and journalist Karyn Maughan. 

Furthermore, said Sutherland, the trial of Downer and Maughan had yet to begin.  

“Their conviction is a necessary condition for criminal liability by [Ramaphosa],” he said. 

He said there would be no harm to Zuma if the private prosecution of Ramaphosa was delayed.

Key to Ramaphosa’s argument is that the nolle prosequi certificate used by Zuma as the basis for his private prosecution is not relevant to him but only to Downer and Maughan. Ramaphosa said this also invalidates the summons issued by Zuma and makes his prosecution unlawful.  

The application for the interdict was argued before the court last Thursday. 

Read in Daily Maverick: “Judgment reserved in Ramaphosa’s attempt to interdict Zuma’s ‘unsound’ private prosecution”

A nolle prosequi certificate is issued by the National Prosecuting Authority when it declines to prosecute a case on behalf of the State. This opens the door for private prosecutions to be launched. 

Zuma initiated the private prosecution of Ramaphosa on 15 December, the day before the governing ANC was to start its national elective conference. The timing of the summons led Ramaphosa to initially accuse Zuma of attempting to scupper his chances of re-election. 

“The nub of [Ramaphosa’s] case is that to submit to the summons is a violation of his rights to freedom, because it is an unlawful summons issued by a person without title to prosecute privately,” said Sutherland. 

“Were one or more of these grounds challenging the validity or applicability of the nolle prosequi to be established at the forthcoming hearings, the result would be to invalidate the summons served on [Ramaphosa],” said Sutherland. 

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Zuma’s legal team wrote to Ramaphosa on 19 August 2021 seeking that an investigation be launched into the alleged breach by Downer and Maughan, which took place on 9 August 2021. The President responded on 25 August 2021 that the matter, “[which] we view in a very serious light”, had been referred to Justice and Correctional Services Minister Ronald Lamola. Ramaphosa said in the same response that he had asked that Lamola refer it to the Legal Practice Council.

Zuma contends that because the matter was not followed through by Ramaphosa, he enabled Maughan and Downer to evade liability and thus harmed Zuma’s “dignity, privacy, bodily integrity and security rights”.

Said Sutherland: “In our view, a prima facie case of the right to personal freedom being violated has been shown. Next, is there any material harm? It was argued [by Zuma] the harm of appearing in a criminal court on 19 January was not material.

“This contention misses the point. The harm lies not in the temporary inconvenience of physically attending a hearing, if only for a postponement. The critical harm concerns a fundamentally constitutionally guaranteed right to personal freedom. That value, which is foundational to our constitutional order, may never be treated lightly.

“[Zuma] suffers no harm if there is a delay in the private prosecution in order to debate the controversies alluded to in this judgment.” DM