All three are faced with being convicted of a range of crimes and all three are determined to destroy central pillars of their societies to escape the consequences.
Trump’s hope is re-election as US president so that he can use executive power to ensure that the various prosecution teams abandon the cases brought against him.
Israeli Prime Minister Benjamin Netanyahu has cobbled together an ultra-reactionary coalition that is intent on eviscerating the concept of an independent judiciary that is the custodian of the rule of law to ensure that his prosecution is stillborn.
We in South Africa can take comfort in the fact that Zuma was removed from power and these avenues are not open to him. But seeking to exploit every legal loophole and thus escape the scrutiny of the criminal courts is his method, notwithstanding the destructive effect on the legitimacy of the legal system itself.
In his latest in an interminable set of moves called the Stalingrad strategy, Mr Zuma sought to launch a private prosecution against advocate Billy Downer SC and journalist Karen Maughan on the invisible legal basis that they had publicly disclosed his medical condition, one presumably so serious that only a Russian, as opposed to South African, doctor can treat him…
A Full Bench of the Pietermaritzburg High Court saw right through this ploy and held that the move to institute a private prosecution had no merit and set aside the summons issued by Zuma against Downer and Maughan. In the first place, Zuma did not have a nolle prosequi certificate as required under s 7(2)(a) of the Criminal Procedure Act (CPA); further, he lacked standing to institute a private prosecution against both under s 7(1)(a) of the CPA as he did not have “a substantial and peculiar interest” arising from “injury” suffered as a result of Maughan obtaining and publishing the contents of a letter by Brigadier-General (Dr) [Mcebisi] Mdutywa.
And most significantly, the court held that the institution of this private prosecution was an abuse of court process, pursued without merit and for an ulterior purpose and that a punitive cost order was merited against Zuma.
No problem, doubtless said Mr Zuma’s lawyers; we will appeal and thus ensure the suspension of this order so that we can ensure that Downer and Maughan are brought before the court as accused in the private prosecution. The latter’s legal teams advised that they could approach the court in terms of Section 18 of the Superior Courts Act and obtain an order ensuring that the appeal lodged by Zuma would itself be suspended pending the outcome of Zuma’s appeal on the merits of the court’s decision.
To the relevant law: Section 18 of the Superior Courts Act provides:
- Subject to subsections (2) and (3), and unless the court under exceptional circumstances orders otherwise, the operation and execution of a decision which is the subject of an application for leave to appeal or of an appeal, is suspended pending the decision of the application or appeal.
- Subject to subsection (3), unless the court under exceptional circumstances orders otherwise, the operation and execution of a decision that is an interlocutory order not having the effect of a final judgment, which is the subject of an application for leave to appeal or of an appeal, is not suspended pending the decision of the application or appeal
- A court may only order otherwise as contemplated in subsection (1) or (2), if the party who applied to the court to order otherwise, in addition proves on a balance of probabilities that he or she will suffer irreparable harm if the court does not so order and that the other party will not suffer irreparable harm if the court so orders.
- If a court orders otherwise, as contemplated in subsection (1)-
(i) the court must immediately record its reasons for doing so;
(ii) the aggrieved party has an automatic right of appeal to the next highest court;
(iii) the court hearing such an appeal must deal with it as a matter of extreme urgency.
The Pietermaritzburg High Court was confronted with the question of whether there were exceptional circumstances that justified an execution order so that the initial order of the court was suspended by dint of Zuma’s appeal. Given the finding of the court against the legality of the Zuma private prosecution, it was hardly surprising the following conclusion was reached in favour of Downer and Maughan:
“In the main judgment we noted that the private prosecution was instituted for an improper purpose and was used as a basis for the First Respondent to seek the removal of Downer as a prosecutor in his criminal trial. Accordingly, that private prosecution served as a precursor to the recusal application now brought before the criminal court and set down for hearing on the 15th and 16th August 2023. The findings of this court in the main judgment were aimed at bringing an end to the abuse inherent in the private prosecution which abuse would continue if the execution order sought is not granted.”
Zuma had refused what was described as a reasonable request to postpone the private prosecution pending the outcome of his appeal against the setting aside of his institution of the private prosecution. For this reason, the court awarded punitive costs against Mr Zuma.
There are two issues that deserve specific attention. Although the issue of payment of costs must await the outcome of the appeals, one is entitled to question whether in the cases that Mr Zuma has been mulcted with punitive costs (or for that matter that other Stalingrad exponent, advocate Busisiwe Mkhwebane), payment of these costs have been made.
Second, s18 of the Superior Courts Act provides for an automatic right of appeal against a s18 enforcement order,which right Mr Zuma is exercising so that his private prosecution may proceed. But if the high court is correct in both the decision to set aside the private prosecution for want of a legal basis and that it is an abuse of process and that the failure to act reasonably and halt the prosecution until the appeal is determined, then it would mean there was no legal justification for Zuma’s legal strategy. If the Supreme Court of Appeal decides thus, then surely costs should be paid de bonis propriis by Zuma’s counsel.
It is high time that courts jealously guarded their legitimacy and where a case is brought on the basis that a court finds it to be a clear abuse of process that any reasonable lawyer would know, then such a cost order against taking such a legal chance is the proper deterrent against such abuse. No court should sanction Stalingrad legal tactics founded on the absence of legal principle, save for delay at all costs. The cynical use of courts must be stopped in these contexts. DM