By Lehlohonolo Lehana.
The Johannesburg High Court has granted President Cyril Ramaphosa an interim interdict against the private prosecution brought against him by former President Jacob Zuma.
The full bench of the high court on Monday delivered its judgment on the matter after it heard marathon arguments last week, from Ramaphosa and Zuma’s legal teams in the president’s bid to block the summons for him to appear in court on Thursday in private prosecution proceedings instituted by his predecessor.
Ramaphosa approached the high court on an urgent basis after Zuma, on 15 December 2022, charged him with being an “accessory after the fact” in relation to charges Zuma is pursuing against senior state prosecutor Billy Downer and journalist Karyn Maughan for allegedly leaking his confidential medical information on 9 August 2021.
Zuma has accused Ramaphosa of committing a criminal offence by not acting against Downer and Maughan when he lodged a complaint with his office on 19 August 2021.
Ramaphosa, on the other hand, has argued that he did not commit any crime because he wrote to Zuma’s legal team on 25 August 2021 informing them that the matter had been referred to Justice Minister Ronald Lamola, and that he had asked him to refer the complaint to the Legal Practice Council.
In delivering judgment, Deputy judge-president Roland Sutherland said Ramaphosa’s application was urgent and Zuma’s pending the final determination of part B [of the application] the first respondent [Zuma] is interdicted from taking any further steps to give effect to the nolle prosequi certificate of 21 November 2022 and 6 June 2022, and the summons issued the by the register on 15 and 21 December 2022 or to pursue the private prosecution under case number 59772 of 2022 against the applicate in any way,” Judge Sutherland ruled.
The court dismissed Zuma’s argument that the urgency in the matter was self-created as “specious, to say the least” as the president initiated an exchange of legal letters as the summons was served. And it said Zuma suffered no harm if the private prosecution were delayed in order to debate the controversies surrounding it.
Dali Mpofu SC, for Zuma, had argued that there was no material harm in having to appear in a criminal court later this week.
“This contention misses the point. Harm lies not in the temporary inconvenience of physically attending a hearing, if only for a formal postponement, the critical harm concerns a fundamentally, constitutionally guaranteed right to personal freedom,” Sutherland said.
“That value which is foundational to our constitutional order may never be treated lightly. Our history instructs us that it is a matter of pride that South Africans value and assert our freedom above all other considerations, in the face of whatever adversity we chance to meet. Our law must guard that right and its exercise unreservedly.”
He has argued that Zuma lacked standing to pursue the prosecution, because the nolle prosequi certificate which he obtained from the NPA in November and on which he relies as licence to institute it did not refer to him or any crime committed by him.
“The trial of the alleged principal offenders is yet to begin,” Sutherland said in reference to the case against Downer and Maughan. “Their conviction is a necessary condition for criminal liability by the applicant.”
He ordered that a case management meeting be arranged promptly to set down a hearing date for the second part of the application, in which the president is asking the court to set aside the private prosecution as unlawful and unconstitutional.
The judgment means that Ramaphosa will not have to stand in the dock this week as an accused.
Ramaphosa has welcomed the decision handed down by the South Gauteng High Court Division to interdict the private prosecution brought against him by Zuma from proceeding until the application to set aside the private prosecution is heard.
In a brief statement presidency said, “The court affirmed all of the President’s key contentions, namely on jurisdiction of the court to hear the interdict application, the urgency of the matter against a court appearance date based on a prima facie unlawful nolle prosequi. The court further found in the President’s favour on the violation of rights to personal freedom based on a prima facie defective summons.”
The judgement confirms the position of the President that the private prosecution is motivated by the ulterior purpose based on spurious and unfounded charges, constitutes an abuse of private prosecution provisions and demonstrates flagrant disregard for the law.”
Zuma meanwhile said he is deeply disappointed the Gauteng High Court in Johannesburg granted Ramaphosa an urgent interdict against him, halting his private prosecution bid against his successor.
In a strongly worded response to Monday’s ruling, the Jacob Zuma Foundation said: “His Excellency Jacob Zuma is obviously disappointed but certainly not at all surprised by yet another travesty of justice this time dished out by the South Gauteng High Court, which granted the urgent interdict in favour of President Cyril Ramaphosa.”
It went on to cast aspersions against the judiciary saying, “it is by now clear that our justice system will do anything in their considerable power to protect Ramaphosa”.
The statement went on to state it was an “unenviable task of all those who believe in equality before the law to tirelessly expose the double standards that are constantly applied in favour of those who carry out the agenda of the continuous oppression and landlessness of the black people”.