Bench debates its jurisdiction to hear Ramaphosa's interdict application against Zuma's private prosecution

The “core question” in the debate about which court President Cyril Ramaphosa should have approached to raise his objections about former president Jacob Zuma’s private criminal prosecution against him was whether the procedure set out in the Criminal Procedure Act was the only route open to him, judge Lebogang Modiba said in the Johannesburg high court on Wednesday. 

Modiba was debating with Ngwako Maenetje SC, counsel for Ramaphosa, about one of Zuma’s preliminary objections to Ramaphosa’s court case to interdict the prosecution: that the civil court did not have jurisdiction to hear the case and that Ramaphosa should have raised his objections in the criminal court.  

Ramaphosa has already obtained an interim interdict preventing any further steps in the prosecution.

At Wednesday’s hearing, Ramaphosa was seeking to persuade the court to make the interdict final and put an end to the prosecution — which he says is unlawful, was brought for ulterior purpose and is an abuse of court process — forever. 

Zuma has charged Ramaphosa as an “accessory after the fact” in relation to another private prosecution he is pursuing against prosecutor Billy Downer SC and journalist Karyn Maughan for an alleged breach of the National Prosecuting Authority Act. 

This was because Downer gave Maughan access to a document about Zuma’s health status that was later disclosed in open court. The accessory charge against Ramaphosa is that when Zuma’s lawyers wrote to him asking him to investigate the conduct of National Prosecution Authority (NPA) officials about the alleged leak, he failed to act.

When Ramaphosa went to the high court seeking an interim interdict, Zuma argued that he was in the wrong court: he should make his objections to the criminal court.

The judgment that granted the interim order rejected the argument, but Modiba said the issue should not be simplified.

“The issue he [Zuma] raises is about procedure ... We well know that the procedure that is followed in the criminal court is very different from that followed in the motion court. What he is asserting is that the president, having been summoned, should have appeared in the criminal court. And only there may he challenge [Zuma’s] title to prosecute, when he pleads,” she said. 

Maenetje responded that the Criminal Procedure Act did not say that the procedure it sets out for this kind of objection was the only route available.

“One must look at the wording. And one will see that it is permissive ... it enables the accused to raise a defence. It doesn’t say this is the only way.” 

The judgments that dealt with this area also said there was nothing in the Criminal Procedure Act that excluded people from approaching the civil courts. There was not only one route, said Maenetje. “That is not what the legislation says. And that is not what the cases say.” 

Even where the Supreme Court of Appeal and the Constitutional Court had “deprecated” preliminary approaches to civil courts, they had always said that the door must be open when it was in the interests of justice. This case was one that “cries out” for the civil court to intervene, he said. 

Maenetje argued that the summons and the nolle prosequi certificates Zuma relied on to bring the charges were unlawful and invalid and would never result in a successful prosecution. He said the charge referred to in the certificates was the offence under the NPA Act that occurred on August 9, yet the request to Ramaphosa came later on August 25.  

Reading from the nolle prosequi certificate of November 2022 issued by KwaZulu-Natal director of public prosecutions Elaine Zungu, it said: “I decline to prosecute any person in relation to this matter.”

“What is this matter? It is this charge. For this contravention. On this day,” said Maenetje. “Just on these documents, it is abundantly clear that these two nolles are not in relation to a charge against the applicant [and] do not relate to the applicant,” he said. 

“The case actually ends right here,” he said. 

But there was also no potential criminal offence, Maenetje said. He said for a criminal offence there must be unlawful conduct, but the president had acted entirely lawfully: when he received the letter from Zuma’s lawyers, he referred it to justice minister Ronald Lamola and asked him to refer it to the Legal Practice Council, which deals with ethical conduct of legal practitioners. 

Zuma had told the KwaZulu-Natal High Court that he was waiting to hear from the justice minister and to co-operate with the investigation, said Maenetje. 

“When did he change, to decide that this is criminal conduct ... in this perfectly lawful instruction of the president to his minister? It’s only on the eve of the national conference of the ANC,” said Maenetje. 

Argument was set to continue later on Wednesday, when Zuma’s counsel would make their argument.

TimesLIVE

Support independent journalism by subscribing to the Sunday Times. Just R20 for the first month.