By Lehlohonolo Lehana.
President Cyril Ramaphosa has filed papers in the Gauteng High Court for an urgent application to interdict former President Jacob Zuma from taking any further steps to give effect to his private prosecution bid against him, asking for a punitive cost order against Zuma.
Ramaphosa is also seeking the court to excuse him from appearing before the court on the 19th of January 2023 as directed by the summons.
Zuma announced the day before the ANC’s national elective conference that he would prosecute Ramaphosa for “being [an] accessory after the fact to crimes committed by among others Adv [Billy] Downer” in alleged breaches of the NPA Act.
The National Prosecuting Authority previously clarified the certificates of non-prosecution it issued to Zuma and his legal team were not in relation to Ramaphosa.
Zuma’s new attempt to privately prosecute Ramaphosa is also based on Downer’s corruption prosecution of the former president. In this instance, Zuma claims that he reported alleged prosecutorial misconduct on Downer’s part to Ramaphosa, but Ramaphosa failed to act.
Hence the idea that Ramaphosa is an “accessory after the fact” to Downer’s alleged misdeeds.
The Presidency hit back on Friday, 16 December, by releasing a statement terming the charges “completely spurious and unfounded”.
On the claims that Ramaphosa failed to act when Zuma alerted him of potential improper conduct by State prosecutors, presidential spokesperson Vincent Magwenya said Ramaphosa immediately referred the matter to Justice Minister Ronald Lamola and asked him to notify the Legal Practice Council.
Moreover, according to the Presidency, Ramaphosa notified Zuma at the time that he had done so.
More significantly, the Presidency pointed out that Zuma had failed to follow the proper protocols when it came to private prosecutions in South Africa.
“In accordance with the Criminal Procedure Act, a private prosecution can only be instituted after the individual prosecuting has obtained a certificate of non-prosecution [a nolle prosequi certificate],” Magwenya wrote.
“The certificate serves as legal confirmation that the National Prosecuting Authority (‘NPA’) will not proceed with the prosecution following its consideration of the charges.”
In his affidavit filed on Tuesday, Ramaphosa says Zuma’s purported private prosecution is unlawful, unconstitutional and invalid, and asks the court to set it aside.
He listed Zuma, the director of public prosecutions in KwaZulu-Natal, the National Prosecuting Authority (NPA) and registrar of the high court in Johannesburg as respondents in the case.
Constitutional law professor Richard Calland, meanwhile, wrote: “The fundamental point is that the so-called charges in the private prosecution disclose no criminal offence and so the summons is invalid. It should be struck down as soon as the President can get before the court.”
Calland added: “Clearly, the [ANC’s] step-aside rule cannot apply to private prosecutions because, as this one shows so clearly, there is no prior consideration of the evidence, and so [it] is open to partisan political abuse.