Private prosecution: Ramaphosa must ‘argue his case in criminal court’, Zuma lawyers say

Our appeal courts had said preliminary litigation that delayed criminal trials should be “disallowed, should not be countenanced and should not be permitted”, said lawyers for former president Jacob Zuma in court on Wednesday.

Yet this is exactly what President Cyril Ramaphosa was doing with his court case to interdict Zuma’s private prosecution against him, they said. 

Zuma’s junior counsel, Lerato Moela, was addressing the court on one of Zuma’s key arguments: that Ramaphosa was in the wrong court: a civil court had no jurisdiction to hear Ramaphosa’s objections to his private prosecution by Zuma. He should have brought his complaints to the criminal court. 

Ramaphosa has already obtained an interim interdict preventing any further steps in the prosecution. At Wednesday’s hearing, he sought to persuade the court to make the interdict final and put an end to the prosecution — which he says is unlawful, 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. In that, separate prosecution, he has alleged 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 because when Zuma’s lawyers wrote to the president asking him to investigate the conduct of NPA officials about the alleged leak, the president failed to act. 

Moela quoted from the 2008 Thint judgment of the Constitutional Court, in which Zuma was a party. In that judgment former chief justice Pius Langa discouraged preliminary litigation where the object was to delay proceedings. Langa said: “Generally disallowing such litigation would ensure that the trial court decides the pertinent issues, which it is best placed to do, and would ensure that trials start sooner rather than later. There can be no absolute rule in this regard, however. The courts’ doors should never be completely closed to litigants.” 

Ramaphosa’s case was a “typical example” of preliminary litigation where he raised a “plethora” of objections. The result was that the criminal trial had indeed been delayed, said Moela. 

Ramaphosa’s case was a typical example of preliminary litigation where he raised a plethora of objections. The result was that the criminal trial had indeed been delayed.

—  Lerato Moela, Jacob Zuma’s junior counsel

Earlier, Ramaphosa’s counsel, Ngwako Maenetje SC, had argued that a plea in the criminal court that Zuma did not have title to prosecute was one way to lodge an objection — but it was not the only way. The Criminal Procedure Act did not say that the procedure it set out 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,” Maenetje said. 

But Zuma’s senior counsel, Dali Mpofu SC, said this was not the correct interpretation of the act. He said if the act was read properly, it was only permissive in relation to the types of pleas available — such as guilty, not guilty, or no title to prosecute — and not to a choice of forums.  

Maenetje referred to a number of judgments that 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.” 

Dealing with the Zuma/Thint judgment and other judgments quoted by Moela and Mpofu, Maenetje said that they still maintained that the door must be left open for approaches to the civil court — when it was in the interests of justice. 

This case was one that “cries out” for the civil court to intervene, he said. The summons and the nolle prosequi certificates Zuma relied on to bring the charges were unlawful and invalid and the charge would never result in a successful prosecution, Maenetje said. 

But Moela said the test to get in the door of a civil court was not the interests of justice. Civil courts should only entertain these kinds of applications in exceptional circumstances, he argued.  

Mpofu was asked what might these exceptional be. Would an allegation that the summons was unlawful constitute exceptional circumstances, asked judge Selby Baqwa. Mpofu said it was for Ramaphosa, not his client, to make a case for exceptional circumstances. 

The bench quizzed Mpofu on whether the allegation that the charge against Ramaphosa was brought with an ulterior purpose — “on the eve of Nasrec”, said judge Lebogang Modibe — brought the case into the terrain that would justify an approach to a civil court. Nasrec was the venue where the ANC held its elective conference in December last year.  

Mpofu said that the argument on ulterior purpose was speculative. The summons was only issued so far into December because of delays by the NPA in issuing the nolle prosequi certificate, he said. By the time it was finally issued in November, it was only about two weeks before summons was issued, which was a reasonable time. 

The hearing will continue on Thursday.