Zuma accused of “playing for time” and court asked to invoke provisions of the NPA Act.

By Lehlohonolo Lehana.

Former President Jacob Zuma’s private prosecution of his successor Cyril Ramaphosa was heard at the Johannesburg’s High Court on Friday.

A postponement was granted as the matter reliant on the outcome of Part B.

The court will pronounce on Ramaphosa’s submission that the certificate is invalid for vagueness in part B of his application in which he is seeking an order setting aside the private prosecution as unlawful and unconstitutional. 

He has argued that such a certificate must name the persons the NPA has elected not to prosecute in relation to a particular matter in order to be valid. The president further argued that the crime of an accessory after the fact could only arise after the date on which the principal crime was committed. 

Since the certificate mentioned only the date of Downer and Maughan’s alleged crime, his counsel said, the nolle prosequi could not refer to the president.

The court said part B of the matter raised novel issues of law, one being whether the issue of a nolle prosequi is administrative action, as this would determine whether Ramaphosa had a right to be heard before it was issued. It is common cause that he was not given the opportunity.

Another is whether criminal liability could accrue to members of the executive for neglecting their duties. 

Last week, the court heard arguments in Ramaphosa’s challenge of the prosecution against him. He is looking for a final interdict that would stop Zuma from hauling him before a criminal court.

In January, Ramaphosa was granted an interim interdict.

Zuma had charged the president with being an “accessory after the fact” to an alleged crime that the former president is pursuing in a private prosecution against prosecutor Billy Downer and journalist Karyn Maughan. He has charged the two with contravening the NPA Act over the disclosure, without the written consent of the NPA’s national director, of a medical report later filed in court during Zuma’s criminal trial for corruption.

Zuma meanwhile was yet again “playing for time” in launching another baseless application for the removal of Downer as the lead prosecutor in his arms deal-related corruption and fraud trial.

Downer, in his affidavit filed on Friday in response to Zuma’s latest application to remove him, has now called on the court to invoke provisions of the NPA Act which allows a court to “investigate any unreasonable delay” in criminal proceedings and issue an order to eliminate the delay and any prejudice arising from it.

Downer says given the 20-year history of Zuma’s “Stalingrad tactics” to avoid having his day in court, it is time for the court to put its foot down.

“We seek the following order, that if he is unsuccessful in this application that the criminal trial shall proceed and shall not be suspended by any applications for leave to appeal.

“This court is empowered to make such an order,” he said.

The latest salvo fired against Downer by Zuma comes after he summonsed him and journalist Maughan to court in a private prosecution alleging Downer contravened sections of the NPA Act by “leaking” a document containing his personal medical information to Maughan.

Pietermaritzburg high court judge Piet Koen (who has now recused himself as the trial judge) has already ruled — in a previous unsuccessful application in which Zuma sought to challenge Downer’s “title to prosecute” on allegations he is biased — that there is no basis to this complaint.

But in April this year, when the trial was due to begin before judge Koen’s replacement, judge Nkosinathi Chili, Zuma lawyers launched a fresh application, saying essentially Zuma could not be prosecuted by someone he is prosecuting.

Both Downer and Maughan have launched court challenges to the private prosecution and judgment is pending.

Downer, in his answering affidavit in the latest bid to remove him, says he has been the lead prosecutor in “successive prosecutions” — first of (Zuma’s former financial adviser) Schabir Shaik and then Zuma in the arms deal-related matter.

He said Zuma’s prosecution has been dragging on for the better part of 20 years. The delay, in large part, due to Zuma’s “Stalingrad tactic” — a phrase first coined by Zuma’s then senior counsel, the late Adv Kemp J Kemp in 2007.

Downer says this was “to avoid at all costs having his day in court and face the charges against him”. He said this tactic involved launching and prosecuting “endless challenges of various kinds”.

Watch Live in the video below:

Video Courtesy of SABC.

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