By Lehlohonolo Lehana.
Former president Jacob Zuma’s basis for seeking to privately prosecute president Cyril Ramaphosa has been declared unlawful and unconstitutional.
Zuma wanted to prosecute Ramaphosa for his alleged failure to act when Zuma alerted him to unlawful conduct by prosecutor Adv Billy Downer.
The Gauteng High Court in Johannesburg handed down its judgment in Ramaphosa’s application to scupper Zuma’s private prosecution, which was brought on the eve of the ANC’s national elective conference in December.
“Zuma’s private prosecution of Ramaphosa in respect of the charges set out in the summons and grounded on the allegations set out in the summary of facts attached to the summons is interdicted,” read the judgement.
“Zuma has also been ordered to pay Ramaphosa’s costs, including the costs of two of his counsel.
“Zuma’s private prosecution of Ramaphosa instituted under the summons is unlawful and unconstitutional and is set aside.”
A nolle prosequi certificate is issued by the prosecuting authority to confirm that the state has no intention of pursuing a particular charge against a person, and it is only with this in hand that the injured party who wishes to initiate the prosecution can approach the court.
KwaZulu-Natal director for public prosecutions Elaine Zungu, who issued the nolle prosequi certificate in question on 21 November last year, has submitted an affidavit to the court that the document “cannot be interpreted to relate to the applicant”.
Ramaphosa had asked the high court to set aside the private prosecution as unlawful and unconstitutional in the second part of an application filed soon after he was summonsed on eve of the ANC’s elective conference.
In January, the high court granted him an interdict halting Zuma’s prosecution bid pending the hearing of the application for final relief.
Zuma accuses Ramaphosa of being an accessory after the fact to an alleged violation of the National Prosecuting Authority (NPA) Act by Billy Downer, the state prosecutor in his arms deal fraud and corruption case.
He has charged Downer and journalist Karyn Maughan with contravening section 41 of the Act, because she was given a copy of an affidavit filed to court on 9 August 2019 in response to an application by Zuma for a postponement in his arms deal corruption trial.
In welcoming the ruling, ANC secretary-general Fikile Mbalula said the governing party members hoped that the case was now put to bed “once and for all”.
“We haven’t been very vocal about this matter, but we don’t want to infringe on the rights of individuals when they defend what is duly their own integrity and right to take matters of that nature for [private] prosecution.”
Ramaphosa meanwhile has noted and welcomed the judgment by the Johannesburg High Court setting aside the private prosecution instituted by Zuma.
“President Ramaphosa has always maintained that Zuma’s private prosecution constituted an abuse of court processes and that it was unlawful and unconstitutional,” the Presidency said in a statement.