Former president Jacob Zuma was on a flight to South Africa after spending weeks receiving medical treatment in Russia when the Pietermaritzburg High Court on Thursday dealt him yet another legal blow in the matter of his private prosecution against prosecutor Billy Downer and journalist Karyn Maughan.

Karyn Maughan and Billy Downer at the Pietermaritzburg High Court on 2 February 2023. (Photo: Gallo Images / Darren Stewart)

Zuma contended that Downer contravened provisions of the National Prosecuting Act when he “leaked” a document to Maughan containing his private medical information. The medical information was contained in a letter from a military doctor, submitted in August 2021 in support of an application for a postponement in Zuma’s Arms Deal trial.

That letter stated that Zuma needed treatment for an undisclosed ailment, and his lawyers did not claim confidentiality when they filed it to the court.

When the National Prosecuting Authority declined to prosecute Downer, Zuma launched a private prosecution against the prosecutor and Maughan.

Zuma’s medical records, however, were public information after they were submitted to the court, and in June the Pietermaritzburg High Court set aside summonses served by Zuma on Downer and Maughan and interdicted him from pursuing the private prosecution. But Zuma applied for leave to appeal against this decision.

Read more in Daily Maverick: Zuma’s Downer-Maughan private prosecution bid is a farce aimed at delaying Arms Deal trial, high court is told

Downer and Maughan approached a Full Bench of the court asking that its previous ruling, setting aside the private prosecution, be immediately enforceable in spite of Zuma lodging a notice of intention to apply for leave to appeal.

Judges Gregory Kruger, Jacqui Henriques and Thokozile Masipa ruled in favour of Maughan and Downer, granting the enforcement order against Zuma. They also ordered that Zuma should pay the costs of Maughan and Downer’s attorneys.

“The summons, by which the respondent [Zuma] instituted a private prosecution of the applicant [Maughan and Downer] in this court, is set aside. The respondent is interdicted from pursuing any private prosecution of the applicant on substantially the same charges as those advanced in the summons set aside. The respondent is ordered to pay the applicant’s cost on the scale of two counsel against the order,” the judgment reads.

The judges added that there was no harm to Zuma in granting the enforcement order, saying that if he won his appeal against the private prosecution being set aside, he could just reinstitute the charges.

Some, including the State, view the litigation by the former president as part of his Stalingrad tactic, wherein he takes every issue on appeal or brings new litigation to delay the start of his fraud and corruption Arms Deal trial.

Maughan took to Twitter to announce: “WE WON. With costs!!!”

“Billy Downer and myself have won the ruling that enforces the High Court’s judgment that former President Zuma’s private prosecution against us is abusive and must be set aside. This means [the] ruling stands despite appeal efforts. Zuma ordered to pay attorney-client costs,” she said.

From Russia with treatment

Zuma was still on the plane from Russia when the judgment was delivered. His plane arrived at Johannesburg’s OR Tambo International Airport at about 4.15pm on Thursday and he was whisked away in a convoy including a Jeep Cherokee, BMW 7 Series and a BMW X5, all of which bore the Presidency or VIP Protection Unit’s emblem.

The Jacob Zuma Foundation said it was “glad to announce that its patron has recently returned from his medically related trip to the Russian Federation. The check-up and observations went well.”

Zuma can appeal, again

Mpumelelo Zikalala, a legal expert based in Durban, said although Thursday’s judgment was a huge blow to Zuma’s effort to privately prosecute Downer and Maughan, he still had options.

“His option is now to go directly to the Supreme Court of Appeal and lodge an appeal. Once he does that, this matter will be on the table again. In fact, either the Supreme Court of Appeal or the Constitutional Court will have to decide which is the most appropriate court, between the civil or criminal court, to deal with this matter,” Zikalala said.

Zuma is reported to have already appealed against Thursday’s judgment, meaning Maughan and Downer will still have to appear in court on the private prosecution summons on Friday.

Mounting legal woes

Meanwhile, the commissioner of correctional services is due to decide whether Zuma has to return to prison to serve the rest of his 15-month sentence for contempt of court.

The Constitutional Court sentenced him after he had refused to attend and give testimony at the Commission of Inquiry into State Capture, which was chaired by Chief Justice Raymond Zondo.

Zuma served only about two months of his 15-month sentence at Estcourt Correctional Centre in 2021 before being released on medical parole. The DA and other entities such as AfriForum and the Helen Suzman Foundation challenged his release and the court upheld the appeal.

Read more in Daily Maverick: Zuma’s days of freedom may be numbered as ConCourt upholds ruling that he must go back to jail

On 13 July 2023, the Supreme Court of Appeal ruled to uphold the high court ruling that former prison boss Arthur Fraser’s decision to grant Zuma medical parole was unlawful.

Makgothi Thobakgale, the commissioner of correctional services, has asked Zuma and other interested parties to file their affidavits on what decision he must take.

DA MP Glynnis Breytenbach on Thursday said the party demanded that Zuma be jailed with immediate effect.

“The DA demands that Zuma immediately returns to Estcourt Correctional Centre to serve the remainder of his 15-month sentence. We will take further action if necessary to ensure justice is served and court orders are upheld.

“South Africans have waited for far too long to see accountability brought upon powerful ANC politicians, who act with impunity and a lack of respect for the justice system. The principle of equality before the law must now be upheld. We urge Commissioner Thobakgale to make a decision with the urgency this moment requires.” DM