Former president Jacob Zuma’s private prosecution of advocate Billy Downer and journalist Karyn Maughan was an “abuse of process, had been instituted for ulterior purposes and with “unclean hands” — and for that reason, the summonses issued by him must be set aside, three KwaZulu-Natal judges have ruled.
Judges Gregory Kruger, Jacqui Henriques and Thokozile Masipa, who heard Downer and Maughan’s applications to effectively quash the private prosecutions, on Wednesday ruled that they were part of Zuma’s ongoing campaign to discredit Downer, who is the lead prosecutor in his arms-deal related trial.
With regards Maughan, they said Zuma’s “personal animosity” against her was evident from his affidavit filed in the matter.
“We agree that the only inference to be drawn from this, coupled with the social media attacks on her (by Zuma’s daughter and the Jacob Zuma Foundation) are done with the intent to intimidate and harass her and prevent her from performing her duties as a journalist. It is an improper motive,” they said.
In their 63-page ruling, the judges went through each of Zuma’s submissions as to why he should be entitled to prosecute the advocate and the journalist, based on allegations that Downer leaked his confidential medical records to Maughan which he said was a contravention of the NPA Act — and criticised every single one.
The document was submitted to court by the state and Zuma’s own lawyers, in his bid to have his criminal trial delayed because he was in hospital.
We agree that the charge against Downer is unsustainable and with his submission that the private prosecution is an attempt to further delay the criminal prosecution and to prevent him from performing his duties. It constitutes an abuse of process.
— Judges Gregory Kruger, Jacqui Henriques and Thokozile Masipa
The issue was also raised by Zuma as part of his special plea before trial judge Piet Koen (who has subsequently recused himself).
Koen, in dismissing the plea, ruled there was no merit to Zuma’s complaint.
He said the letter was a public document, that it was not intended to be confidential nor was it. It did not contain any confidential information about Zuma’s medical condition and it was filed by his own attorneys.
The judges said they agreed with Koen’s ruling. And there was no prospect of any success in the private prosecution.
With regards Maughan, they said Zuma did not have the required nolle prosequi certificate from the director of public prosecutions at the time summons was served on her. And a second certificate issued later, did not name her as a suspect.
While this should be the end of the matter, the judges said they would deal with every point raised in the applications as was required should the matter be appealed.
“What is most noteworthy is the manner in which the respondent (Zuma) has dealt with the facts pleaded by Maughan and Downer.
“There are blanket, bald denials of material allegations without laying any factual basis for them.
“The founding affidavits pertinently raise the question of ulterior purpose and motive. Zuma simply responds by saying ulterior purpose or motive is irrelevant and can be dealt with at the trial.”
They said Downer had repeatedly indicated the private prosecution was a precursor to the institution of a recusal application against him (which has subsequently been made) and thus a springboard for a further delay in the criminal trial.
He had annexed a chronology demonstrating that Zuma had litigated against the NPA for 19 years — and none of his applications had been successful even on appeal before the Supreme Court of Appeal and the Constitutional Court.
They said Zuma denies using “Stalingrad tactics” but the only reasonable inference was that he wanted to discredit Downer and prevent him from executing his duties as a prosecutor in the criminal trial.
“We agree that the charge against Downer is unsustainable and with his submission that the private prosecution is an attempt to further delay the criminal prosecution and to prevent him from performing his duties. It constitutes an abuse of process.”
Turning to Maughan’s application, the judges said she had submitted that the private prosecution was a blatant and egregious abuse of the private prosecution process.
“It is not disputed that she has commented on all litigation involving the respondent and remains one of the few journalists who continue to do so.
“As a journalist she is seen as part of the ‘hostile media with menacing commentary’.
“It is evident that the respondent harbours great hostility towards her. The tweets annexed to her founding papers demonstrate that she has been repeatedly maligned and threatened for her reporting on him and his court matters.
“The affidavit references instances of social media abuse by his daughter and his foundation.
In response, Zuma says he has no control over the tweets and posts.
But the judges said: “As attractive as the argument may be, Maughan, in our view, has been harassed and prohibited from proper reporting and does so with a cloud hanging over her head and with the threat of either private prosecution or civil action. In addition, some of these comments may incite physical harm.”
The judges said Zuma had said he could not take responsibility for the tweets and posts of others and that he is merely a patron of the foundation.
“While on paper, he may be a patron, it is true that the Jacob Zuma Foundation is an avid and ardent supporter of him.
“In his answering affidavit, his personal animosity towards Maughan is exposed. She is alleged to have colluded, conspired and been in partnership with the state prosecutors perpetuating a false narrative of his conduct towards litigation and the delays in the criminal trial. This is repeated on a number of occasions and his hatred, impatience and vitriolism towards her is patently obvious.”
They said at the time of the publication of Maughan’s article (based on the document) it had been filed in court three times.
Zuma was aware of this — and of judge Koen’s views on the matter, but he had persisted with the private prosecution.
“We agree that the only inference to be drawn from this, coupled with the social media attacks on her, were done with the intent to intimidate and harass her and prevent her from performing her duties as a journalist.”
They said the private prosecution constituted a violation of her constitutional right to freedom of media, to report on matters of public interest, without threats and without intimidation and harassment.
The judges set aside the summonses, interdicted Zuma from reinstituting any further public prosecutions against Downer and Maughan and ordered Zuma to pay punitive costs on an attorney and own client scale.
Mzwanele Manyi of the Jacob Zuma Foundation described the judgment as “bizarre”.
He said: “From where we sit, the law is clear on this matter. The NPA Act has been transgressed. We can’t see how the court can see nothing wrong with it. We don’t understand why the court has made this judgment.
“We see it as a travesty of justice. This, as we see it, is the notorious Zuma law. Zuma will appeal it and the foundation supports him.”
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