There has been extensive comment over the past few weeks regarding the manner in which former US president Donald Trump reacted to the 37 federal charges brought against him and how former UK prime minister Boris Johnson reacted to the findings of a parliamentary committee that he lied to Parliament about his conduct during the Covid 19 lockdown.

Both regard themselves as being beyond the reach of the rule of law. Charge Trump and he and the lawless Republican Party accuse every judge who finds against him of being a partisan hack, every prosecutor and federal investigator of being a witting tool of President Joe Biden and thus a participant in a grand conspiracy to undermine Trump’s “solemn commitment to fair political contestation”.

In a similar fashion, Johnson trashes the UK Parliament, which he claims is intent on undermining his Brexit “success” (more accurately, “madness”) by inventing illegitimate findings against a truly innocent man.

This conduct, sadly, is not confined to the US and the UK. We in South Africa have our very own exponents of this assault on the rule of law and the institutions that serve as the guardrails thereof. 

Jacob Zuma and Busisiwe Mkhwebane can deservedly be placed in the same league as Trump and Johnson. Take the recent press conference of Mkhwebane. She trashed Parliament by way of the most tendentious reliance on seemingly incomprehensible audio clips and attacked the legitimacy of the courts and in particular the Constitutional Court, all in yet another attempt to portray herself as an innocent victim at the hands of a conspiracy between the President, the legislature and the courts.

Trump would have been impressed with her performance.

Jacob Zuma has been in this game for almost two decades as he seeks to prevent the courts from determining whether he contravened the law. Legal defeat after defeat does not deter him as he continues to use the law to undermine the core ambitions and purposes of the law.

But there are now signs that the courts have had more than enough of this exploitation of the law.

The recent decision in Maughan v Zuma and Others is illustrative. In this case of Zuma’s attempt to launch a private prosecution against Karyn Maughan and advocate Billy Downer SC, a Full Bench of the KZN High Court found that the prerequisite for such a prosecution, being a nolle prosequi certificate issued by the Director of Public Prosecutions, was not present in that there had been no indication that Maughan was ever considered to be an accused, let alone a suspect.

In the case of both Maughan and Downer, the court found that the basis of Zuma’s case – the public disclosure of his medical condition – was gainsaid by the fact that there was nothing in the disclosure that could be construed as confidential medical information.

In coming to this finding, the court referred with approval to the finding of Judge Piet Koen in dealing with one of the tsunamis of challenges brought by Zuma against his own prosecution: the finding that the said letter was a public document and that it “was vague and general in terms and does not disclose any particularity which could be said to amount to a violation of Mr Zuma’s rights to privacy. Specifically, it does not mention the medical condition Mr Zuma suffers from.”

No genuine purpose

Significantly, the court went on to find that there was no genuine purpose served by the attempt to privately prosecute Downer other than a further attempt at postponing the criminal trial – Stalingrad tactic 101.

The court found thus:

“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.”

Turning to the case of Maughan, the court found that there was no genuine legal basis for the private prosecution other than naked hostility against a journalist seeking to perform her legitimate role. In this connection, the following passage of the judgment is particularly important:

“It is evident that the Respondent [Zuma] harbours great hostility towards her and this is demonstrated in his affidavit and by the Respondent’s associates and supporters. The tweets annexed to the founding papers demonstrate that the Applicant [Maughan] has repeatedly been maligned and threatened for her reporting of the Respondent and his court matters. It is evident that this emanates from members of the Respondent’s family, being his daughter as well as Mr Manyi, the spokesperson for the Jacob Zuma Foundation. Her affidavit references instances of social media abuse by the Respondent’s daughter and the Jacob Zuma Foundation.”

In this context, the court referenced the importance of the constitutionally entrenched freedom of expression in terms of section 16 of the Constitution to conclude that Zuma’s conduct against Maughan was an assault on this protection of media freedom. To again quote from the judgment: 

“The private prosecution of Maughan arises from her reporting specifically on the Respondent’s criminal cases. Maughan’s reporting of the Respondent’s criminal trial is essential to ensure that the public learns the truth about the criminal allegations, sees justice being done and maintains trust in the criminal justice system.”

The only possible criticism of this judgment concerns the award of costs. The court mulcted Zuma with punitive costs. However, given the lack of any legal or evidential basis for Zuma’s opposition to the relief sought by Downer and Maughan and the court’s consistent refrain that malice rather than law was at the heart of the Zuma case, this appeared to be a case where costs de bonis propriis against Zuma’s legal representatives would have been appropriate. This would serve as a deterrent to arguments before the court being predicated on an absence of any plausible legal foundation.

The kind of legal move used by Zuma in this case represents an attempt to use the law to destroy the legal system; how much worse is it for lawyers who are officers of the court to pour more fuel on this legal fire?

Reverting back to Mkhwebane and conflagration, she has burnt through more than R30-million of taxpayers’ money in her campaign to blame all but herself for the case against her performance as Public Protector.

The question of costs aside, the significance of the judgment in favour of Downer and Maughan is that it represents an important defence by the courts against the abuse of law to destroy law. It is to be hoped that its precedent has increasing traction. DM