The Johannesburg high court has set aside the private prosecution of President Cyril Ramaphosa by former president Jacob Zuma.
In a judgment on Wednesday, the court also interdicted the prosecution “in respect of the charges set out in the summons and grounded in the allegations set out in the summary of facts attached to the summons”.
Zuma had sought to privately prosecute Ramaphosa as an “accessory after the fact” in relation to another private prosecution he was pursuing against prosecutor Billy Downer SC and journalist Karyn Maughan for an alleged breach of the National Prosecuting Authority (NPA) Act. In that separate prosecution, he alleged Downer gave Maughan access to a document about Zuma’s health status that was later disclosed in open court. Last month, that prosecution was set aside by the Pietermaritzburg high court.
The accessory charge against Ramaphosa was because when Zuma’s lawyers wrote to the president asking him to investigate the conduct of NPA officials regarding the alleged leak, the president failed to act.
In their ruling, judges Mahomed Ismail, Selby Baqwa and Lebogang Modiba said Ramaphosa had brought his application to enforce “individual rights of the accused person not to be subjected to a clearly unlawful private prosecution process, thus protecting and vindicating the rule of law”.
The prosecution was “for an ulterior purpose in what amounts to an abuse of this court's process”.
The court also found the nolle prosequi certificates, upon which the prosecution was based were vague and one of them, originally issued in respect of Downer, was out of time to have any application to Ramaphosa. They were “unlawful, invalid and unconstitutional and fall to be set aside”, said the judgment.
The summons, issued against Ramaphosa on December 15 and 21 last year — on the “strength of nolle prosequi certificates that are vague and do not relate to Ramaphosa” — were also unlawful, invalid and unconstitutional, said the court. “They therefore fall to be set aside.”
The judges found Zuma's allegation would not lead to a conviction because they were grounded on conduct that did not constitute a criminal offence. “The president's response to Zuma's request [that he investigate Downer's conduct] was perfectly lawful,” said the court.
Zuma's denial that he was not bringing the prosecution for an ulterior purpose was “so far-fetched that this court may not reasonably rely thereon”.
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