Zuma is back from Russia with no love for Downer and Maughan

Former president Jacob Zuma appeared in the Pietermaritzburg high court on Friday in his capacity as “private prosecutor” in his case against senior state advocate Billy Downer and journalist Karyn Maughan.

This was his first public appearance since he returned from Russia, where it has been reported he was undergoing medical treatment.

On Thursday, a full bench of the KwaZulu-Natal High Court granted orders sought by Downer and Maughan to immediately enforce its previous ruling setting aside the private prosecution.

This was done because Zuma had noted an appeal and ordinarily this would have suspended the judgment.

For a few hours this meant Downer and Maughan did not have to appear in court on Friday in the private prosecution. However, late on Thursday Zuma invoked his automatic right, in terms of the Superior Courts Act, to appeal Thursday’s ruling.

Downer and Maughan made a brief appearance before judge Nkosinathi Chili. 

The case was adjourned until November 1 this year to determine the way forward in the matter. Chili warned them both to appear on that date, saying if they did not, warrants would be issued for their arrest.

Advocate Dali Mpofu, for Zuma, said the appeal against Thursday’s ruling was inherently urgent and would likely be heard in a month or two.

He agreed with the judge that it was effectively “back to square one”, referring to when Downer and Maughan had last appeared and the matter had to be adjourned pending their (now successful) applications to have the warrants in the private prosecution set aside.

Mpofu noted Zuma was also challenging Downer’s right to prosecute him in the arms deal-related trial and that would be heard on August 15 and 16.

In June this year, the full bench — judges Gregory Kruger, Jacqui Henriques and Thokozile Masipa — ruled Zuma’s private prosecution was an abuse and was initiated for ulterior purpose with the the aim of discrediting Downer and intimidating and harassing Maughan.

They set aside the summonses and interdicted Zuma from initiating any further private prosecutions against Downer and Maughan on the same charges.

In their application to enforce the order in spite of Zuma’s appeal, the same judges found there were exceptional circumstances to warrant this, and that Downer and Maughan would suffer irreparable harm if they had to appear in court again.

They had both sought an undertaking from Zuma’s lawyers that they would not have to, pending the appeal process.

In refusing this, Zuma's lawyers had been stubborn.

“The findings of this court in the main judgment were aimed at bringing to an end the abuse inherent in the private prosecution, which abuse would continue if the execution order sought is not granted,” the judges said, saying it was evident Zuma was again embarking on his “Stalingrad” strategy.

They said the private prosecution was based on “unfounded charges”.

However, in terms of the Superior Courts Act, a litigant is given automatic right of appeal in an enforcement order. This means that unlike the appeal against the June ruling (the main judgment) in which Zuma is required to seek leave to appeal, he does not have to do so in the enforcement order matter.

Because of potential prejudice, these appeals are always deemed to be urgent.

Zuma, in his private prosecution, claims Downer contravened provisions of the National Prosecuting Act when he “leaked” a document to Maughan containing his private medical information. The document was attached by both the state and Zuma’s lawyers to an application by Zuma for a postponement of his trial because he was in hospital.

Former arms deal trial judge Piet Koen has already ruled  the document was not confidential, that it was never intended to be confidential and it contained no confidential details.

The document was handed in to court  just prior to Zuma being released on medical parole by then prison boss Arthur Fraser. His release was deemed unlawful by the Supreme Court of Appeal (SCA) and the Constitutional Court declined to hear an appeal on that.

The SCA ordered the matter be referred back to the commissioner of correctional services to determine if Zuma was required to serve more time, behind bars or otherwise,  of the 15-month prison sentence imposed on him by the Constitutional Court  for contempt of court after refusing to present himself at the state capture inquiry.

Spokesperson for the JG Zuma Foundation Mzwanele Manyi has argued there is no provision in law for Zuma to return to jail because he has served his time, albeit some while under correctional supervision and outside jail.

He was not a “free man” during that time, Manyi has said, and he could not attend customary rituals ahead of his brother’s funeral.

A decision from the commissioner of correctional services is pending.

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