In rejecting former president Jacob Zuma’s application for leave to appeal in litigation over his private prosecution of President Cyril Ramaphosa, the high court also said Zuma’s attorney and counsel, Dali Mpofu SC, had failed in his ethical duty to the court.
In July the Johannesburg high court granted a final interdict to Ramaphosa, preventing Zuma from continuing with his private prosecution against him. The high court called his attempted prosecution an abuse of process and found that it had an ulterior purpose.
In this latest judgment, the court said his lawyers “sought to mislead this court”.
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 and journalist Karyn Maughan for an alleged breach of the National Prosecuting Authority Act. This prosecution was set aside by the Pietermaritzburg high court in June.
In a unanimous judgment on Tuesday, three judges of the Johannesburg high court said they were unconvinced that Zuma’s “elaborate” appeal grounds would lead another court to decide differently or that there were any other compelling reasons to allow an appeal.
In their leave to appeal judgment, Lebogang Modiba, Selby Baqwa and Mohammed Ismail dispatched Zuma’s application for leave to appeal in a few paragraphs. The majority of the judgment dealt with arguments Zuma had made on one of the findings in its earlier judgment: that Zuma had not paid a security deposit as required by the Criminal Procedure Act.
When the case was originally argued, Zuma had insisted that he had paid the security deposit and said though it was late, the late payment had been already been “condoned” by deputy judge president Roland Sutherland in the initial stages of the litigation — the interim interdict stage also called “Part A”.
In the result, Mr Zuma’s attorney and Mr Mpofu sought to mislead this court by committing these omissions. If [Ramaphosa’s senior counsel, Ngwako] Maenetje had not brought the existence of DJP Sutherland’s response to this court, this court would not have been aware of it.
— High court judgment
This was disputed by Ramaphosa’s legal team and the bench invited Zuma’s attorney, Mongezi Ntanga, to give it proof that Sutherland had indeed condoned any late payment, since it was not part of the court’s order.
“Having not heard from Mr Zuma’s attorney, in its judgment in respect of part B, this court ruled that no such condonation was granted,” said the court on Tuesday.
When he applied for leave to appeal, Zuma insisted that condonation had been granted, but there was correspondence in which Sutherland had “clarified that the part A court did not grant condonation”. But this correspondence was not disclosed to the court.
The judges said even if Zuma persisted with his argument, Ntanga had an ethical duty to disclose Sutherland’s position. “By not making such disclosure, Mr Zuma’s current attorney of record failed in that duty,” said the court.
Mpofu had been copied in on the correspondence, the court said. “Having been copied in the correspondence, Mr Mpofu also had an ethical duty to disclose DJP Sutherland’s response,” said the court. “He too failed in his duty towards this court,” said the judges.
“In the result, Mr Zuma’s attorney and Mr Mpofu sought to mislead this court by committing these omissions. If [Ramaphosa’s senior counsel, Ngwako] Maenetje had not brought the existence of DJP Sutherland’s response to this court, this court would not have been aware of it,” they said.
Zuma may still petition the Supreme Court of Appeal to pursue his appeal. Unlike with the litigation over his prosecution of Downer and Maughan, which Downer alleges Zuma is using as a Stalingrad tactic to delay his own corruption trial, the attempted private prosecution of Ramaphosa has not been alleged to be connected to delaying Zuma’s corruption case.
The court did not say in its judgment, as sometimes happens when a legal practitioner is criticised by the court, that it would send a copy of its judgment to the Legal Practice Council or Mpofu’s bar.
But it may lead to another complaint or investigation of unethical conduct, even by a member of the public, to the LPC. In June 2022, a majority of the LPC’s disciplinary committee cleared Mpofu of an ethical breach when he said at the state capture commission in March 2021 that public enterprises minister Pravin Gordhan and his counsel, Michelle le Roux, should “shut up”.
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