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Ramaphosa calls Zuma’s private prosecution ‘frivolous’, Zuma accuses president of delaying tactics

Ramaphosa calls Zuma’s private prosecution ‘frivolous’, Zuma accuses president of delaying tactics
Illustrative image | Sources: President Cyril Ramaphosa. (Photo: Kirsty Wigglesworth - WPA Pool/Getty Images) | Former President Jacob Zuma. (Photo: Gallo Images / City Press / Tebogo Letsie) | Rawpixel

Is former president Jacob Zuma’s attempt to privately prosecute President Cyril Ramaphosa harassment? Or is the former president exercising his legal rights? These are among the questions the Gauteng Division of the High Court in Johannesburg will hear when lawyers for the former and current president face off against one another.

Cyril Ramaphosa has brought an application against Jacob Zuma, requesting the court to interdict him from trying to privately prosecute the President as an “accessory after the fact” in his ongoing private prosecution against Billy Downer SC.

Downer is leading the prosecution team against Zuma in his criminal case for alleged corruption in the infamous Arms Deal. Zuma has tried for several months to have Downer prosecuted over allegations that he contravened the NPA Act by allegedly leaking Zuma’s medical information to News24 journalist Karyn Maughan. But Ramaphosa says his name has no place being associated with the Downer matter or Zuma’s attempt to prosecute him.

‘Frivolous and vexatious’

In heads of argument before the court, Ramaphosa calls the nolle prosequi certificates that Zuma received from the NPA invalid. The first, obtained in June 2022, mentioned Downer only. The second, obtained in November 2022, does not mention any names specifically but simply confirmed that the NPA does not plan to prosecute anyone in connection with the allegations that Zuma has made. 

“The nolle prosequi certificates on which Mr Zuma relies for the private prosecution do not relate to the applicant (Ramaphosa) or an offence or charge against the applicant,” Ramaphosa’s lawyers say.

They also say Zuma is playing political games: “The purported criminal prosecution is for an ulterior motive and is frivolous and vexatious. It is an abuse of court process,” Ramaphosa argues. 

Zuma’s main gripe with Ramaphosa is that he did not investigate a complaint – over the alleged leak of medical information – that he laid against Downer in August 2022. Ramaphosa says he referred the complaint to Justice Minister Ronald Lamola.

“The Minister was requested then, to escalate the complaints of misconduct to the Legal Practice Council for investigation. In fact, (Ramaphosa) referred Mr Zuma’s complaint to the Minister,” his lawyers argue. They add that Zuma’s complaint against Ramaphosa cannot form the basis of a criminal offence.

“The prosecution could not genuinely be for purposes of obtaining a criminal conviction. It is to harass the applicant for political ends,” Ramaphosa’s lawyers argue.

They also argue that Zuma is required to provide a security deposit before proceeding with a private prosecution, in terms of section 9 of the Criminal Procedure Act:

“The first respondent (Zuma) did not pay a security deposit before issuing the summons and he has not done so to date. In his answering affidavit, he vacillates between two versions. On the one hand, he has put up security, on the other, he will still do so. Whatever the position, there is no evidence that security was in fact paid at all; or to the magistrate’s court in whose area of jurisdiction the alleged crime was allegedly committed. No summons should have been issued without proof that a security deposit was paid and issuing the summons in such circumstances was unlawful.” 

Ulterior motive

Ramaphosa also argues that the timing of Zuma’s prosecution, on the eve of the ANC’s elective conference in December 2022, points to an ulterior motive. 

“The ANC’s 55th National Conference was due to commence the day after the first summons was issued. It was common knowledge that (Ramaphosa) was standing for re-election as President of the ANC. It is also commonly known that the step-aside rule of the ANC would preclude any member of the ANC from contesting the elections while a criminal charge was pending against them in a court of law. 

“The earlier summons was served for the purpose of attempting to prevent (Ramaphosa) from standing as a candidate in terms of the ANC’s step-aside rule. In terms of the step-aside rule, if it applied to the applicant, the applicant would also have to step aside from the elected position on account of the pending criminal prosecution.

“The summonses were also issued to attempt to achieve this purpose, i.e., that (Ramaphosa) would not be permitted to continue as the elected President whilst the criminal proceedings against him continue. This is a blatant abuse of process.” 

Political vilification

Meanwhile, Zuma’s team argues that there are no fewer than 10 “overlapping legal issues” that the court should decide, including whether Ramaphosa’s objection should be dealt with in civil or criminal court.  

His lawyers argue that the issues being raised in these civil proceedings should rather be argued in the criminal court, where Zuma wants Ramaphosa to appear.

“It seems obvious that the court should refuse to entertain the present preliminary litigation, dismiss the application and duly refer the matter to the court which has jurisdiction, namely the criminal court as the ‘constitutionally ordained’ forum to deal with issues such as title to prosecute, the requirements of section 7 of the Criminal Procedure Act or allegedly vexatious and unfounded private prosecutions or even any ambiguities in the charges.”

Zuma’s lawyers argue that Ramaphosa should be held accountable for not acting against Downer:

“The charge against the Accused (Ramaphosa) is centred around the allegation that as a person bearing the legal duty to institute an enquiry or investigation into the alleged misconduct of public prosecutors, and in spite of having been specifically requested to do so, he failed and/or refused adequately to discharge that legal duty and did so unlawfully and with the intention to enable the perpetrators and/or accomplices in the principal offence, to escape or evade justice and at the expense of injuring the dignity, bodily integrity and security rights of the private prosecutor, Mr Zuma.” 

Zuma also alleges that Ramaphosa wants to vilify him.

“It is further significantly alleged that he was acting with personal animosity and to drive a personal campaign of undue vilification of Mr Zuma, hence the citation in his personal capacity and initial service at his private residence and/or his personal attorneys.”

Zuma argues that his complaint against Downer “extended beyond Mr Downer” but also covered “all other persons as reflected in the documents attached above who are either prosecutors and/or investigators who have violated the provisions of the NPA Act and the Constitution”. 

Zuma places Ramaphosa among this group for failing to institute an investigation.

“It is exactly this failure to investigate or take all the reasonably necessary steps to bring the perpetrators to justice on the part of either Mr Ramaphosa and/or Mr Lamola which would clearly render them to be accessories after the fact, assuming all the other definitional requirements have been met,” Zuma’s lawyers argue.

Delaying tactics

Zuma, long entangled in delays in his own criminal case, has accused Ramaphosa of seeking “to delay the criminal proceedings for political reasons”.

Zuma’s lawyers dispute that there is any defect in the nolle prosequi certificates issued by the NPA and argue that Ramaphosa can and should be included as an accessory after the fact.

“The nolle prosequi certificate(s), with particular reference to the November certificate, are fully compliant and in the standard format. They typically identify the suspect(s), the offence, the date of its commission and include the declaration that the DPP would have duly read the docket. 

“It is also fairly standard in the case of multiple suspects to identify the ‘suspect’ as ‘any person in connection with the offence’. There is nothing remarkable in that expression,” Zuma’s lawyers argue.

The case is due to be heard on 17 and 18 May before a full bench of the high court. Zuma’s legal team is led by Dali Mpofu SC, along with four junior counsel. Ramaphosa’s team is led by Ngwako Maenetje SC, accompanied by two junior counsel. DM

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