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Second appeal blow to Zuma’s private prosecution attempts, as judges say Mpofu tried to ‘mislead’ court

Second appeal blow to Zuma’s private prosecution attempts, as judges say Mpofu tried to ‘mislead’ court
Jacob Zuma and his daughter Duduzile Zuma-Sambudla at the Johannesburg High Court on 17 May 2023. (Photo: Gallo Images / Papi Morake)

The Johannesburg High Court dismissed former president Jacob Zuma’s application for leave to appeal against a ruling preventing him from privately prosecuting President Cyril Ramaphosa. He’s likely to head for the Supreme Court of Appeal.

On Tuesday, 12 September, a full Bench of the Gauteng Division of the High Court in Johannesburg unanimously dismissed an application for leave to appeal brought by former president Jacob Zuma as he continues to try to privately prosecute President Cyril Ramaphosa.

This was the second defeat in two days as the Pietermaritzburg High Court made a similar ruling in his cases against prosecutor Billy Downer and journalist Karyn Maughan on Monday. Judges Lebogang Modiba, Selby Baqwa and Ismail Mohamed dismissed Zuma’s latest application with costs.

The ruling, which was delivered electronically, was as much an assessment of Zuma’s conduct in the case as that of his legal team, including advocate Dali Mpofu. The court dealt briefly with the appeal, saying that it considered the “elaborate grounds for appeal as set out in his application”.

Read more in Daily Maverick: ‘Abuse of process’ – high court delivers fresh blow to Zuma, swats aside bid to prosecute Ramaphosa

“We are not persuaded that Mr Zuma meets the test for leave to appeal on any of the two statutory provisions on which he relies. We therefore stand by the reasons and orders set out in the judgment,” the judges said. 

This pronouncement occupied just the first page of the judgment. The remaining six pages were spent dealing with an issue which the court anticipated would be argued before the Supreme Court of Appeal, where Zuma has already indicated he plans to appeal in both the Ramaphosa and Downer-Maughan cases. 

Read more in Daily Maverick: SLAPP down — Jacob Zuma fails in attempted private prosecution of Billy Downer and Karyn Maughan

During the latest hearing in the case, Zuma had argued that the high court “misdirected itself and flouted s34 of the Constitution by failing to deal with Mr Zuma’s defence in respect of failure to pay a security deposit as required in terms of s9 of the Criminal Procedure Act (CPA).”

The CPA requires anyone seeking to begin a private prosecution to pay a deposit, to ensure that the prosecution is not frivolous. At the time of charging Ramaphosa in the private prosecution, Zuma had not paid the deposit, but his lawyers told the court that Deputy Judge President Roland Sutherland had condoned it when he heard the first part of the case on an urgent basis.

“After reserving judgment in this application, Judge Modiba presiding, issued a directive calling on Mr Zuma’s current attorney of record to place the correspondence exchanged with Sutherland DJP’s office regarding whether the Court in Part A granted Mr Zuma security for late payment of the security deposit, file an affidavit placing the correspondence before this court and explain among other issues, why there was persistence with the contention that this Court ignored the order for condonation granted by Court A notwithstanding Sutherland DJP’s response that no such order was granted,” the court said.

Ramaphosa’s legal team also submitted information about the correspondence with Sutherland which revealed what really happened. 

The court noted that Zuma changed his story regarding the deposit, saying he “initially vacillated between saying that security has been paid and that it will be paid”. Zuma then “contradicted his purported exemption from paying security by paying it”.

In his affidavit, Zuma told the court he had taken all the necessary steps to make payment by making inquiries with the court registrar, but had not actually paid the deposit. 

During oral argument in the case, Zuma’s lawyers repeatedly said he had complied with Section 9 of the CPA and that Judge Sutherland had earlier condoned the late payment. This was not the case.

“Notwithstanding his client’s persistence with the relevant ground of appeal, Mr Zuma’s current attorney of record had an ethical duty to disclose to this Court that Sutherland DJP did not acquiesce his request to modify the order granted by the Court in Part A to reflect that it granted condonation because it had not granted it. By not making such disclosure, Mr Zuma’s current attorney of record failed in that duty,” the court said.

The court found that Mpofu, who argued the condonation point, was aware that Sutherland had not agreed to this.

“Having been copied in the correspondence, Mr Mpofu also had an ethical duty to disclose Sutherland DJP’s response to this Court when he addressed the Court in the application for leave to appeal notwithstanding his client’s persistence with the relevant ground of appeal. He too failed in his duty towards this Court. In the result, Mr Zuma’s attorney and Mr Mpofu sought to mislead this Court by committing these omissions. If Mr Manaetje (representing Ramaphosa) had not brought the existence of Sutherland DJP’s response to this Court, this Court would not have been aware of it,” the judges said.

The court added that the fact that Zuma’s current lawyer, Mongezi Ntanga, began working on the case only after the initial meetings with Sutherland took place was “irrelevant”. “He committed the omissions referenced above.” 

The court did not sanction the Zuma legal team when dismissing the application.

The Presidency has welcomed the decision.

“As we have always maintained from the onset, the private prosecution had no basis in law and constituted an abuse of private prosecution provisions,” Presidency spokesperson Vincent Magwenya said. DM

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Comments - Please in order to comment.

  • Susan Keegan says:

    So when will we see sanctions from the courts for Dali Mpofu?

    • Sindiswa Moolman says:

      Thats right!! When? this Adv. has been conducting himself unethically forever, but nothing happens. He insulted Pravin’s counsel during the State Capture proceedings, insulting evidence leaders in the Sect 194 proceedings, and downright rude to his colleagues and others.

  • jacki watts says:

    Who is paying for all this nonsense… Not only Zuma but the ex public “protector”?

  • Iam Fedup says:

    Do these people have no shame? Oh wait… I forgot. It’s Zumba and his minions.

  • Sydney Kaye says:

    Heading to the SCA for another battering. No doubt on the advice of his brilliant arm waving advocate. Oh well. As long as the fees keep coming in.

  • David Amato says:

    Love Duduzile Zuma-Sambudla T-shirt, where can you get those so I can also show my support for the down trodden mighty Russia?

  • Andrew Blaine says:

    Surely the time must be rapidly approaching where funding for this spurious litigation will cease, assuming of course that does not come from the public purse?
    Can anybody offer a timeline in this, and other associated litigation, so that some finality can be realised?

  • Beyond Fedup says:

    Exactly – who is paying his legal fees? This is the cowardly and revolting thief-in-chief who claims that he has to sell socks in order to survive and that he is terminally ill whilst toyi-toying in front of his poodles in Zulu that he is strong as an ox. Nothing but a despicable thief and a complete fraud. As for the highly odious daughter, living off her father’s stolen nest-egg, she wouldn’t survive a single day under Putin.

  • Henry Henry says:

    Misleading the court? That’s a ground for removal from the roll of advocates.
    Will the LPC do its job?

  • Glyn Fogell says:

    And we’re still waiting for Mr Zuma’s two counts of corruption, one count each of racketeering and money laundering, and twelve counts of fraud linked to the arms procurement deals to be heard in a court of law. He cries that he is being denied his day in court to prove his innocence, yet takes every opportunity to avoid it.

  • Sindiswa Moolman says:

    Are you telling me that Mpofu committed perjury?

  • Denise Smit says:

    It is more than time that action be taken against Dali Mpofu. But of course we have a judiciary who was put in place by Malema and the ANC(Zuma faction) They will continue to allow him to get of scot free. Such as with his “shut up” utterences against Adv Michelle Le Roux. Denise Smit

  • Andre Swart says:

    Zuma is not ‘all there’ and is abused by greedy laywers to loot the state coffers.

    Suspend them from the legal professional organisations for malafide litigation.

    Make them ‘PAY BACK THE (TAX) MONEY!

  • Andre Swart says:

    Justice delayed is justice denied … in the arms procurement deal!

    Prosecute those guilty of delaying justice … to save face of the juditiary in SA.

    DISGRACE!

  • Brian Doyle says:

    What a waste of everyones time and money. Zuma, the ultimate corrupt person just wants to keep his name up in lights

  • Johan Buys says:

    Advocates should keep their scorecard of wins in higher courts with their title – like boxers do. So for example “Mpofu SC (2 for 47)”

  • William Dryden says:

    I wish the courts would get on with it and prosecute him and he’s Attorney Mpofu, while they at it also Zuma’s daughter for inciting the July riots.

  • Gregory Scott says:

    Fantastic outcome and what a waste of money for those who are bankrolling Zuma’s Stalingrad tactics

  • mongetane says:

    The untouchable, double standards by the courts, it goes against ethical behaviour of a lawyer to mislead the court.

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