JACOB’S DATE WITH JUSTICE
Zuma’s Stalingrad defence disintegrates after judges quash latest legal gambit in scathing judgment
Jacob Zuma has delayed his Arms Deal trial for 19 years with various forms of litigation, all of which have failed. And now, in a scathing judgment, the high court has stymied his attempt to bring private prosecutions against his prosecutor, Billy Downer, and journalist Karyn Maughan.
Former president Jacob Zuma has spent more time in court than most South Africans, waging legal battles for 19 years against allegations that he improperly benefited from the Arms Deal in the early years of democracy.
In addition to his court appearances for his trial in Pietermaritzburg, he has launched three private prosecutions closely linked to the Arms Deal.
This week, the KwaZulu-Natal Division of the High Court in Pietermaritzburg put a stop to his attempt to prosecute Advocate Billy Downer privately, the man leading the National Prosecuting Authority’s (NPA’s) case against him.
That interdict, if upheld in Zuma’s planned appeals, could be the end of what his detractors have called Zuma’s “Stalingrad” litigation tactics.
The cases Zuma has built over time are woven together by a single thread – an allegation that Downer is out to get him and is prosecuting him in bad faith.
This allegation led Zuma to try to prosecute Downer privately and, along with him, journalist Karyn Maughan, whom Zuma accused of colluding with Downer to publish details of his medical records illegally.
Zuma’s web has extended further, attempting also to ensnare President Cyril Ramaphosa.
However, this week judges wrote a scathing assessment of Zuma’s litigation and attack on Downer, which will have an impact on his efforts to put Ramaphosa in the dock.
They also characterised his case against Maughan as a Slapp suit – an aggressive form of litigation aimed at silencing journalists, detractors and whistle-blowers.
The concept of “Stalingrad” tactics has its origin in the World War 2 battle in which the Soviet Union slowly and steadily wore down German forces over five months.
Zuma’s web of litigation has been slow and steady, and it has lasted significantly longer, delaying the restart of his Arms Deal trial by two years.
Downer has argued that Zuma’s attempt to prosecute him privately was nothing more than an attempt to get him removed from the criminal case as lead prosecutor. It’s an argument that judges Gregory Kruger, Jacqui Henriques and Thokozile Masipa have accepted.
“The Respondent [Zuma] has repeatedly, through his legal representatives, indicated that the private prosecution was a precursor to the institution of a recusal application for Downer and thus a springboard for further delay in the criminal trial,” the court said.
It noted that Downer had provided a chronology of Zuma’s litigation dating back several years.
“Such chronology demonstrates that the Respondent has litigated with the NPA since 30 August 2003 until at least 31 October 2022, a period of approximately 229 months, which equates to 19 years.”
The court also noted that, in the 19-year period, Zuma had made “numerous applications and none of them [has] succeeded”.
“None of the courts, including the Constitutional Court, which have dealt with these applications, [has] made any findings that the Respondent’s rights were violated in any way. We agree that, against this background, the application by Downer and Maughan is an attempt, specifically by Downer, to prevent further abuse of the process of court and to ensure that the criminal trial proceeds. The application is directed at ensuring that there is an end of the abuse of an unlawful private prosecution and an end hopefully to the ‘Stalingrad’ strategy,” the judges wrote.
The judges say Zuma has come to court with “unclean hands” and, as a result, find his private prosecution to be an abuse of process that the court “must sanction”.
Private prosecution web
The court also found that the private prosecutions against Downer and Maughan were “without merit and unsustainable”. The letter that Zuma complained had been given to Maughan “illegally” was already a public document, the court found.
“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.”
This finding could have a significant impact on Zuma’s concurrent case in the Gauteng Local Division of the High Court, where Ramaphosa is trying to interdict Zuma’s private prosecution. Ramaphosa has made a similar allegation of abuse of process, adding an accusation of political rivalry as the root cause.
In halting the Downer prosecution, the KwaZulu-Natal Division of the High Court in Pietermaritzburg presents Zuma with a conundrum. Zuma accuses Ramaphosa of being an “accessory after the fact” to Downer’s alleged crime of leaking court documents.
His lawyers were at pains to point out that Ramaphosa’s alleged crime was linked to the original allegation against Downer. However, with the interdict now in play, Zuma would have difficulty in continuing to prosecute Ramaphosa as an accessory.
Another problem presented by the latest judgment is the interpretation of who falls within the nolle prosequi certificates issued by the NPA. Zuma was able to obtain two certificates from the KwaZulu-Natal Director of Public Prosecutions, one of which specifically mentioned Downer and the other simply saying that the NPA did not intend to prosecute anyone for the alleged crime.
Zuma tried to extend these certificates to include Maughan, but the KwaZulu-Natal Division of the High Court in Pietermaritzburg found problems with this approach.
“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.
Ramaphosa made a similar argument, arguing that none of the certificates in Zuma’s possession mentioned or included him and that he could not be added after the fact. If the Gauteng court agrees with its KwaZulu-Natal counterpart on this front, it would send Zuma back to the drawing board.
Zuma is expected back in the KwaZulu-Natal Division of the High Court in Pietermaritzburg on 15 and 16 August to answer to charges arising from the Arms Deal, along with Thint (Thales), the arms company charged with corruption alongside him.
The trial has been a stop-start affair, mainly because of the legal objections that Zuma has raised. Shortly after the trial was meant to kick off in 2021, Zuma launched a special plea application saying that Downer was not fit to prosecute because of alleged bias. The plea brought up Downer’s conduct when the Arms Deal case began more than a decade ago.
Zuma argued that the case was initially politically motivated and that Downer had known this at the time. Zuma also argued that Downer had leaked his medical records, an argument that was also used in his private prosecution.
The NPA countered, saying Downer had wanted Zuma to stand trial alongside Schabir Shaik and disagreed with the 2003 decision to withdraw the case. It denied any wrongdoing on Downer’s part in leaking any medical information.
In October 2021, Judge Piet Koen dismissed Zuma’s application to have Downer removed from the case based on his title to prosecute, saying the law did not extend to include bias or a lack of impartiality on the part of a prosecutor. The judge also concluded that the letter Zuma alleged had been leaked formed part of the court record, and was therefore a public document.
Any challenge involving alleged bias on the part of the prosecutor “should have been raised in a substantive separate application for the removal of the prosecutor”, Judge Koen said. He added that “adequate remedies exist in our law to cater for the fair trial rights of the accused”.
Zuma also tried to take the matter to the Constitutional Court, but his case was dismissed for lack of legal standing.
In January this year, Koen recused himself from the criminal trial because of his involvement in preliminary hearings that touched on the issue of whether Zuma was receiving a fair trial and he anticipated that the issue could arise again later in the case.
Koen said he was recusing himself to protect the “integrity of the judicial process”. The decision had the effect of delaying the trial again as a new judge had to be appointed. Judge Nkosinathi Chili took over in January and is expected to hear the case once it returns to court in August.
However, it is not clear whether the trial will continue as planned because Zuma’s team has already said it will continue to pursue the Downer private prosecution.
In a statement issued after Wednesday’s ruling, Jacob Zuma Foundation spokesperson Mzwanele Manyi called the ruling “bizarre”, saying the law was being applied to Zuma differently from others.
“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,” he said.
Zuma has also recently written a legal letter to Ramaphosa, demanding that he start a commission of inquiry into the NPA. Zuma appears to be extending his complaint beyond Downer, calling on Ramaphosa to investigate the NPA national director, Shamila Batohi, and deputy director Rodney de Kock.
Zuma complains that the NPA backed Downer by issuing a statement soon after Zuma instituted his private prosecution. The letter appears to be setting the scene for a fresh round of legal challenges focused on the NPA leadership.
Zuma has repeatedly relied on the courts but has also said he is mistrustful of them, with his lawyers and Manyi referring to an alleged bias that they call “Zuma law”.
In June 2021, Zuma was sent to jail for 15 months for contempt of court for refusing to appear before the Zondo Commission of Inquiry. He spent three months in prison and was released on medical parole, a decision that has also been challenged in court. After his release, Zuma said he had a “remaining concern” about whether he was “really free”.
“While I am relieved about the ending of my prison sentence, I still remain exposed to the injustice visited upon me by the justice system,” he said in a press conference in 2022. He added that the justice system had been “infiltrated” by “those who supported apartheid”. He has repeatedly accused Chief Justice Raymond Zondo of having a bias against him.
Law guidance needed in private prosecutions
Though private prosecution is not a new concept in South African law, legal experts agree that some aspects require clarification.
Durban-based lawyer Mpumelelo Zikalala, who has been following the Zuma cases closely, says because two courts in different jurisdictions are dealing with similar questions, there could be a need for a higher court to clarify some of them. Chief among the questions is whether a civil court should even be deciding whether a criminal procedure such as a private prosecution should continue.
“It is all well and good to win on a technical level. But we do need the Supreme Court of Appeal or the Constitutional Court to put this matter to rest. I don’t think there have been more than 30 private prosecution cases in South Africa. We do need some guidance,” Zikalala said.
He added that in future there would be more instances of people going to civil court to stop proceedings in a criminal court, as was recently seen in the case brought by Dr Nandipha Magudumana in the Thabo Bester case. “It is going to start small, but if it is left like this, we will see many more criminal cases going to civil court, simply looking at a technical process.”
Jamil Mujuzi, a law professor at the University of the Western Cape, said there could be a need to strengthen the law around private prosecution, as has been done in other countries. “Case law from different countries, including South Africa, shows that some people have abused their right to institute private prosecutions. As a result, some measures have been put in place to minimise such abuse, especially before a person is allowed to institute a private prosecution. For example, in Australia, the law provides that the registrar must not sign a court attendance notice or an application notice in private prosecutions if [he or she] is of the opinion that the proceedings are frivolous, vexatious, without substance or have no reasonable prospect of success.”
Mujuzi added that South Africa’s Criminal Procedure Act provided “detailed provisions on private prosecutions”. “Courts have also developed rich case law on the matter. However, the law may have to be amended to minimise abuse. For example, it could be amended to provide that a person shall not be issued with a certificate to institute a private prosecution unless the Director of Public Prosecutions is convinced that there is a prima facie case against the accused.”
Jacob Zuma versus the law
November 1999: MP Patricia de Lille hands an arms deal dossier to the head of the Special Investigating Unit, Judge Willem Heath. The dossier alleges corruption in the finalisation of the deal.
March 2000: Schabir Shaik, Jacob Zuma and Thint representative Alain Thetard allegedly meet to discuss paying Zuma R500,000 a year in return for protection from government probes.
August 2003: Bulelani Ngcuka announces that the National Prosecuting Authority (NPA) will prosecute Schabir Shaik but not Deputy President Jacob Zuma despite having a “prima facie” case of corruption against him.
June 2005: Shaik is found guilty of corruption and sentenced to 15 years in jail. Former president Thabo Mbeki removes Zuma as deputy president. The NPA formally charges Zuma with corruption. In September 2006, the corruption case is struck off the court roll because of delays by the NPA.
December 2007: NPA head Mokotedi Mpshe and his deputy Leonard McCarthy decide to reinstate charges against Zuma, a decision that is met with several legal challenges. Zuma is elected president of the ANC, leading to his election as president of South Africa in 2009. The ANC resolves to disband the Scorpions, which were investigating Zuma.
September 2008: Judge Chris Nicholson rules that charges against Zuma are invalid. He finds there had been political interference in the case. This decision is overturned by the Supreme Court of Appeal in January 2009.
February, March, April 2009: Zuma’s legal team makes representations to the NPA. These include the “Spy Tapes”, recordings of conversations between McCarthy and people linked to the case, including Ngcuka and Justice Minister Brigitte Mabandla. The NPA announces it will cease its prosecution attempts.
April 2016: The high court in Pretoria rules that the decision to halt prosecution was irrational. The Supreme Court of Appeal upholds the decision in October 2017.
February 2018: Zuma resigns as president and is charged again two months later.
October 2019: Zuma’s stay-of-prosecution application is dismissed. Co-accused company Thales also attempts to challenge the charges.
May 2021: Judge Piet Koen is appointed as presiding officer and begins to hear Zuma’s special plea application to have prosecutor Billy Downer recused. DM
This story first appeared in our weekly Daily Maverick 168 newspaper, which is available countrywide for R29.