The high court in Pietermaritzburg has interdicted former president Jacob Zuma from continuing his attempted private prosecution of prosecutor Billy Downer and journalist Karyn Maughan, calling his case an abuse of power. 

Zuma had tried to prosecute Downer for allegedly leaking his medical records to Maughan. The records were included in the court documents in Zuma’s court case and the court has found that the documents were public records. 

The judgment was handed down in a brief hearing on Wednesday. The order says Zuma is “restrained from reinstituting proceedings or from taking any further steps pursuant to the private prosecution” of Maughan. He is also interdicted from pursuing any private prosecution “on substantially the same charges as those advanced in the summons set aside” against Downer. Zuma has been ordered to pay legal costs for both.

Read more in Daily Maverick: Ready to rumble: Zuma ups the ante and files criminal charges against prosecutor Billy Downer

No certificate to prosecute Maughan

Zuma had initially obtained a certificate in June 2022 to prosecute Downer after the National Prosecuting Authority declined to do so the previous year. Zuma later added Maughan as an “accused”. 

In the written judgment, judges Gregory Kruger, Jacqui Henriques and Thokozile Masipa wrote that the criminal summons against Maughan is unlawful as she is not mentioned anywhere in his initial criminal complaint. 

“We are accordingly of the view that the Respondent, Mr Zuma, has failed to produce any nolle prosequi certificate which would entitle him to institute a private prosecution against Maughan. The summons against Maughan is therefore unlawful and is to be set aside,” the judges wrote. 

Maughan had previously argued that Zuma was pursuing an “ulterior purpose of intimidating and harassing” her in order to prevent her from doing her job. She had argued that the letter, which was included in the court bundle, formed part of the court record and could be reported on.

Read more in Daily Maverick: Zuma’s still-mysterious ‘medical condition’ weaponised to prosecute journalist accused of disclosing it 

The letter did not stipulate any specifics of Zuma’s condition but says he was “put under active care” by military doctors on 28 November 2020. 

The letter also indicates that Zuma was admitted to the hospital on 6 August 2021  and is “undergoing extensive medical evaluation and care as a result of his condition that needed an extensive emergency procedure”. 

The court agreed with a previous ruling by Judge Piet Koen that found that the contents of the letter were “vague and general in terms”. The court added that Zuma failed to prove that he suffered any injury as a result of this letter being made public.

Abuse of process 

The court also examined Downer’s separate case for an interdict. He had argued that Zuma was attempting to privately prosecute him as a means to remove him as the main prosecutor in his criminal case. Downer also accused Zuma of taking a “Stalingrad approach” in which he deliberately brought new legal challenges, without merit, to court in order to delay the Arms Deal case being heard. 

Read more in Daily Maverick: Miracles aside, Zuma Arms Deal trial is likely to begin in 2023

“That these documents are public documents and can be made available is something that must not be lost sight of. In our view, as the charge against Downer is unsustainable, we agree with the submission by Downer that the private prosecution is an attempt to further delay the criminal prosecution and prevent him from performing and executing his statutory and professional duties. It constitutes an abuse of process.”

The court also took into account the submissions of various inputs from various amicus curiae, who advised the court on media freedom and the danger of Slapp lawsuits. Slapp, meaning strategic litigation against public participation, is often aimed at silencing whistleblowers and journalists to stop them from reporting on a particular issue by tying them up in legal wrangling. It also considered the online abuse that Maughan was subjected to, mainly on Twitter, by some supporters of Zuma. 

The court agreed that Maughan’s constitutional right to freedom of expression has been violated. The court found that the filing of the summons and the subsequent social media attacks on her “are done with the intent to intimidate and harass her and prevent her from performing her duties as a journalist. It is done for an improper motive not with the intent of addressing any wrongdoing on her part. When viewed holistically we agree with Maughan that the private prosecution constitutes a violation of the rights recognised in s16(1) of the Constitution. The right to freedom of the media has been acknowledged by our courts.”

The court found that interdicting Zuma from prosecuting her would not constitute a blanket protection from private prosecution of civil proceedings.

“All it does in this instance is protect journalists, members of the press and media houses from meritless private prosecution which amounts to an abuse of process.”

‘Appalled’

Jacob Zuma Foundation spokesperson Mzwanele Manyi said:

“The foundation is indeed appalled by this bizarre judgment. From where the foundation sits, the law is very clear on this matter. Section 41 of the NPA Act has been transgressed and we don’t understand why the court would make such a judgment. 

“His excellency president Jacob Zuma is going to appeal this judgment. We see this as a travesty of justice. We see this as people that are treated with laws that are not in existence in the country, when the law is so clear about not giving out information prior to the permission of the National Director of Public Prosecutions. 

“How can it be that when that has happened, the court sees nothing wrong with this? We see this as one of those notorious Zuma laws. This must be appealed so it will be appealed.” DM