Former president Jacob Zuma has gone directly to the Constitutional Court asking it to overturn the interim interdict obtained by President Cyril Ramaphosa that put a halt to Zuma’s private prosecution against him.
The interdict prevented Zuma from taking any further steps in pursuing his prosecution until the courts determine whether the prosecution is lawful. It meant Ramaphosa did not have to step into a criminal dock on January 19 as per a summons obtained by Zuma.
Zuma wants the apex court to hear and decide his appeal application before May 26, the date the criminal court will reconvene, with his attorney saying that “in respect of future dates of appearance, this application is of crucial importance”.
The former president has charged Ramaphosa with being an “accessory after the fact” in relation to a separate private prosecution he is pursuing against prosecutor Billy Downer and journalist Karyn Maughan, after Downer provided Maughan with a medical report about Zuma later filed in court. Zuma’s charge against the two is that this breached the National Prosecuting Authority Act. Ramaphosa’s alleged crime is that when Zuma wrote to the president asking him to investigate, Ramaphosa failed to act.
The interdict put a temporary halt to the prosecution. But it ordered that Part B, which will decide whether to make the interim interdict a permanent one, would be heard on an expedited basis, on May 17 and 18.
Zuma’s application to appeal against the interdict was filed on the same day Ramaphosa delivered an affidavit in the high court for Part B in which Ramaphosa says Zuma’s accusations against him could never amount to a criminal offence.
The affidavit was filed in accordance with a court-ordered schedule for filing of court papers, after the judges had heard all the parties. Ramaphosa’s affidavit was a “supplementary” one — to add to the arguments he made when he won his interim interdict.
He said when Zuma asked him to investigate Downer’s conduct, Zuma knew Ramaphosa did not have the legal authority to investigate alleged crimes and that the allegations against Downer and Maughan were the subject of pending criminal proceedings.
“I could not lawfully institute a parallel process to these court proceedings if what [Zuma] wanted me to investigate was alleged criminal conduct,” he said.
He said Zuma had himself said that Ramaphosa had asked justice minister Ronald Lamola to investigate and that Zuma was awaiting the outcome of this investigation. “The complaint against me in these circumstances could never constitute a criminal offence,” he said.
“Mr Zuma will not be able to prove the crime of accessory after the fact or defeating the ends of justice against me ... pursuing a private criminal prosecution in those circumstances is frivolous and vexatious,” said Ramaphosa in his affidavit.
In the circumstances, the private prosecution was “not pursued to obtain a genuine criminal conviction. It is pursued for an ulterior purpose and constitutes an abuse of the process of court,” he said. Ramaphosa also said he met all the requirements for a final interdict and that this should be granted.
But in Zuma’s application for leave to appeal to the Constitutional Court, his attorney Walter Niedinger, insists that Ramaphosa has “negligible prospects of success in respect of both Part B and the criminal trial itself”.
In motivating for the highest court to give a decision before May 26 , Niedinger said Zuma’s application represented “easily one of the saddest chapters in the history of injustice in South Africa” and dealt with “some of the most fundamental issues which flow into the DNA of South Africa, past, present and future”.
Perhaps most important of these was “the chaos which will rule [if] the sacrosanct principle of judicial precedent or stare decisis is neglected, misapplied or allowed to be manipulated by litigants,” he said.
Zuma’s grounds of appeal include that the high court was wrong in how it differentiated between private prosecutions and those conducted by the prosecuting authority and by diminishing the difference between the criminal courts and the civil courts when it rejected Zuma’s argument that Ramaphosa should bring his complaints about the prosecution to the criminal court.
The judgment had “created a new legal regime” that conflicted with Supreme Court of Appeal jurisprudence, said Niedinger.
“Practically all the main grounds of appeal ... represent exceptional and special circumstances which warrant the intervention of the apex court,” he said.
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