Court to say on Monday if it will stop private prosecution of Ramaphosa

President Cyril Ramaphosa will find out on Monday around 9.30am whether he has persuaded a court to grant him an interim interdict that would prevent former president Jacob Zuma from hauling him before a criminal court on January 19.

After hearing argument in Ramaphosa’s urgent bid to stop the prosecution in its tracks for now — pending part B of the case on whether the prosecution is lawful and constitutional — a full bench of the Johannesburg high court reserved judgment.

But deputy judge resident Roland Sutherland and judges Edwin Molahlehi and Marcus Senyatsi said they would deliver judgment on Monday morning.

In court on Thursday, Zuma’s counsel, Dali Mpofu SC, said: “This case is about one thing and one thing only.”  He said Ramaphosa was trying to avoid appearing in court as a criminal accused like any other South African would if they were charged with a crime.

Ramaphosa’s counsel, Ngwako Maenetje SC, retorted: “Yes, because the appearance would harm his rights.”

He said if Zuma’s litigation was genuine, he would have no objection to taking the prosecution off the criminal roll for now, until the court had determined whether it was indeed lawful.  

“Why can’t he do that? Because there is an ulterior purpose. He [Zuma] wants him [Ramaphosa] in that dock for his own political purposes,” said Maenetje.

Despite court papers that ran to thousands of pages, in argument the issues before the court narrowed. Argument was focused on whether the high court had the jurisdiction to hear Ramaphosa’s case, whether it was urgent and whether Ramaphosa had met the requirements for an interim interdict.

Mpofu referred to previous judgments of the Supreme Court of Appeal that had taken a dim view of preliminary litigation ahead of criminal trials — Stalingrad, one judgment called it — and said that any objections that Ramaphosa had should be raised in the criminal court.  The civil court should not entertain his application, Mpofu argued.

He said all South Africans — 60-million people — who were charged with crimes had “to suffer the inconvenience of appearing in court”. Yet the president had asserted no exceptional circumstances as to why he should not — except that he was the president, said Mpofu.

However Maenetje argued there was a difference between private prosecutions and ones that were brought by the National Prosecuting Authority — the institution that was authorised by the constitution to prosecute on behalf of the state. The cases Mpofu had quoted were all prosecutions brought by the NPA said Maenetje, who listed cases that dealt specifically with private prosecutions. He argued that, in their case, the high court did have jurisdiction to stop them in their tracks and set them aside.

“It’s different from the multitudes that my learned friend [Mpofu] keeps referring to. Those 60-million are charged by the public prosecutor,” he said.

Maenetje argued that in the constitutional scheme, private prosecutions had to strictly comply with the requirements of the Criminal Procedure Act. Zuma’s private prosecution of Ramaphosa had not, he said. Maenetje said Mpofu “wants us to bypass” the constitutional framework. “The courts can’t permit that to happen,” he said.

On whether the prosecution had met the requirements of the Criminal Procedure Act, Maenetje said that the nolle prosequi certificates that Zuma had relied on did not apply to Ramaphosa.

The certificates Zuma has relied on were issued by the KwaZulu-Natal director of public prosecutions in Zuma’s separate private prosecution of 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.

Ramaphosa’s alleged crime is being an “accessory after the fact” because when Zuma’s lawyers wrote to the president to complain about Downer and demanded an investigation, Ramaphosa failed to act.

Maenetje said the certificate refers to an offence that occurred before the complaint letter was even written and did not refer to the crime of accessory after the fact.  On this, he faced questions from the bench.

Sutherland asked whether Ramaphosa’s approach to the certificate wasn’t — as suggested by Zuma — “petty” and whether the court should not take a “purposive view” of the certificate, looking at what its purpose was, to implicitly include any person who was involved.

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Maenetje said the role of the certificate was to show that the director of public prosecutions had considered whether a certain charge could be laid against a specific person. He argued that reading the certificate and relevant sections of the CPA in context, it was clear that the certificate did not apply to Ramaphosa.  

Mpofu argued that “accessory after the fact” by necessity means that the crime must have happened after the original offence, which is what the certificates were issued for. This was “criminal law 101,” he said in court.

In earlier court papers, Zuma said the certificates applied to all alleged to be involved in the commission of the offence — the alleged main perpetrator (Downer) the alleged accomplice (Maughan) and the alleged accessory (Ramaphosa).

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