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Zuma’s Stalingrad tactics are degrading the SA judiciary system – he must be stopped


In real life, Professor Balthazar is one of South Africa’s foremost legal minds. He chooses to remain anonymous, so it doesn’t interfere with his daily duties.

What do Donald Trump, Benjamin Netanyahu and Jacob Zuma have in common?

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:

  1. 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.
  2. 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
  3. 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.
  4. 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


Comments - Please in order to comment.

  • Alan Watkins says:

    “de bonis propriis”
    Out of ones own pocket, for those unaware of the meaning.

  • Gordon Bentley says:

    I could not agree more, Prof.

    Please suggest a legal remedy, for our legal fraternity to mull over, even if it means making a meaningful change to our legal system. This has been happening too regularly recently and must stopped.

  • Alastair Sellick says:

    Some sanity at last. Please ensure that each and every Judge in South Africa receives this sanity. We live in hope that most will act on it.

  • Scott Gordon says:

    The last I heard JZ has already R18m in outstanding legal fees .
    So , if costs not paid to the court and winning counsel , then what ?
    Not contempt of court ?
    Wonder how his lawyers get paid ?
    Yes , innocent until proven guilty , if found guilty , can you pay the bills ?
    You ate the steak 🙂
    Then declare oneself ‘ bankrupt ‘ ?
    Also wonder who funds the JZ Foundation ?
    And why he is still roaming the streets ?
    Was he not going back to jail ? Or has he appealed that too ?
    As for all the fun across the pond , while not an huge fan of DT , the DOJ is going after him all guns blazing .
    Yet strangely silent about the laptop and all the papers found at Biden’s house.
    Not sure if a Presidential Pardon would cover the one charge he is likely to be convicted of .
    Seriously , bragging about having “Classified Documents ” and waving them around .

    • Steve Davidson says:

      “Yet strangely silent about the laptop and all the papers found at Biden’s house.” No, you’ve got your conspiracy theories all wrong. It was Hunter Biden whose laptop hard drive that was mysteriously handed into some weird geek or other, wasn’t it? And the non-top-secret papers that his father had were immediately returned once he realised he had them, as far as I know. Seems that most past presidents do that but not The Chump, who apparently stored mounds of state secrets in his bathroom or toilets presumably for sale or otherwise to foreign powers? It gets so confusing keeping up with the bullshit, much like with Msholozi!

  • David Peddle says:

    The real problem we are faced with, is either the ‘good judges’ are unaware of their powers and rights in these matters due to inexperience, or they are unwilling to do their jobs because they ‘fear’? the repercussions of doing what they should -”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 ” or alternatively they themselves are actually in favour of Zuma avoiding all repercussions and getting off scot-free, meaning they are in thrall to the ANC in the last resort!??

  • Andrew Blaine says:

    The quickest route to stopping the stalingrad defence is to make the defendant pay for their own defence.
    The costs incurred by JZ are such that his lawyers are rich by representing his interests. However if he had to pay and/or the legal representatives were only paid for success, the defence system would collapse

  • Richard Baird says:

    Of course some of the other Stalingrad cases are
    racist Judge Motata and
    Western Cape Judge Hlope.

  • kgomongwemolefe says:

    Well, Prof, justice has no eyes. This you should know. Zuma is entitled to protection of the law just like anyone else. This right is constitutionally guaranteed. That you hate the man or his counsel will not change the law.

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