Advocate Dali Mpofu (centre left) and former president Jacob Zuma (right) at the Gauteng Division of the High Court in Johannesburg on 17 May 2023. (Photo: Gallo Images / Papi Morake) 
Advocate Dali Mpofu SC was warned to “tone down” and “moderate” his language after criticising the conduct of the National Prosecuting Authority (NPA) in a case involving President Cyril Ramaphosa and former president Jacob Zuma. Mpofu, representing Zuma, has argued against an application which seeks to halt Zuma’s private prosecution of Ramaphosa.
Zuma alleges that Ramaphosa is an “accessory after the fact” in another private prosecution that he has brought against prosecutor Billy Downer, who Zuma alleges unlawfully leaked his confidential medical records to journalist Karyn Maughan. Downer has denied any illegal conduct and is also attempting to halt his private prosecution.
/file/dailymaverick/wp-content/uploads/2023/05/ED_451318.jpg "Advocate Dali Mpofu at the Gauteng Division of the High Court in Johannesburg on 17 May 2023. (Photo: Gallo Images / Papi Morake)")
The Criminal Procedure Act allows individuals to enter into private prosecutions once the NPA decides it will no longer continue with a prosecution. The individual must obtain a nolle prosequi certificate from the NPA in which it indicates it won’t be continuing with the prosecution. Zuma obtained two such certificates, one in June 2022 and one in November of that year. Ramaphosa argues that his name does not feature as a potential accused in either document and as a result has called the prosecution unlawful. The NPA, which said it didn’t want to be dragged into the dispute, agreed that Ramaphosa was never mentioned as a potential accused.
‘A hallelujah moment’
Arguing in the Gauteng Division of the High Court in Johannesburg, Mpofu vociferously criticised the NPA’s support of Downer, calling it “disgraceful”. He also alleged that NPA officials “lied” when they said Zuma’s complaint made no mention of Ramaphosa. The NPA’s representative, advocate Frank Mothibedi SC, objected to Mpofu’s statements, saying: “It’s unfair to say the DPP [KZN Director of Public Prosecutions Elaine Zungu] lied.”
Mpofu doubled down, saying the NPA had shown support for Downer when it should have remained neutral.
“At what point does a National Director of Prosecutions issue a statement defending a person that is an accused person? If Mr Downer pleads guilty in the private prosecution, the NPA must step in. Are they going to sponsor his legal representation and prosecute him? That is disgraceful,” Mpofu said.
Judges Lebogang Modiba and Selby Baqwa both warned Mpofu to tone down his language while making his points. Modiba said if the court agreed with Mpofu’s argument on the NPA’s conduct, it would make the appropriate ruling, prompting Mpofu to exclaim: “That is what I call a hallelujah moment!”
Jurisdiction challenge
The court also heard significant argument on the question of jurisdiction. Zuma’s initial private prosecution is before a criminal court, while Ramaphosa’s interdict application is before a civil court.
Mpofu, on behalf of Zuma, argues that the case should remain in the criminal court. He referenced section 106 of the Criminal Procedure Act which specifies the different pleadings that accused people can make during a court appearance, including challenging the “title to prosecute”. Mpofu argued that Ramaphosa should have attended the criminal case, and used that remedy instead of instituting separate civil proceedings.
“The nature of the challenge is title to prosecute. Because of the nature of the challenge, it falls under section 106 of the Criminal Procedure Act. Even when they talk about ulterior motive, it leads us to title to prosecute… They are saying that the prosecutor has no title to prosecute. But they can’t do that now. They must do it when they plead [in a criminal court].”
If the court accepts Mpofu’s argument, it would mean Ramaphosa would have to appear as a criminal accused in the dock. Once asked to plead, he would then raise the issue of the validity of the prosecution process by raising Zuma’s title to prosecute. Mpofu argued that Ramaphosa had chosen a “long convoluted route” that “makes no sense at all.”
Interest of justice
Ramaphosa’s team has attacked Zuma’s private prosecution on several grounds. Advocate Ngwako Maenetje SC told the court Ramaphosa had the right to exercise his rights in a civil court even though the prosecution is unfolding in a criminal court.
“As an individual occupying an office, when his rights are breached he has the right to approach the court,” he said. Maenetje also criticised the manner in which Zuma had brought about the private prosecution, calling it “prosecution for an ulterior purpose… You have a private prosecution that is in breach of the rule of law. That threatens his constitutional rights.”
He added that it was “in the interest of justice” that a civil court hears Ramaphosa’s argument.
“When we go to the facts, you will see that other than the creativity of counsel, the nolle prosequi does not relate to the President. This case is where the interest of justice cries out for the court to intervene.”
He also argued that Zuma had not followed the required process of making a security deposit to the magistrates’ court before proceeding with the private prosecution. An amount of R250,000 was eventually paid, four months after the prosecution was launched. He said if the court allowed this, it could lead to abuse of process.
“There are limited circumstances where a court can allow for noncompliance with a statutory provision. If you are allowed to pay two years down the line, the accused may incur all kinds of costs and then you abandon the matter,” he said.
Mpofu is expected to continue with arguments on behalf of Zuma on Thursday. The court will also hear from amicus curiae (friend of the court) Blackhouse Kollective Foundation. Ramaphosa and the NPA will each have a chance to rebut before the case is concluded. DM