Former president Jacob Zuma has applied for a “reconsideration” by the Supreme Court of Appeal (SCA) of its refusal to entertain his appeal in his failed bid to privately prosecute President Cyril Ramaphosa.
Zuma’s private prosecution of the president was set aside by the high court in July last year. It refused him leave to appeal in September, saying an appeal had no prospects of success. An attempt to appeal to the Constitutional Court against the interim interdict obtained by Ramaphosa also failed.
Zuma then petitioned the SCA for special leave to appeal. But in February this was rejected, with the appellate court saying in a single line that “the requirements for special leave are not satisfied”.
Now he has asked SCA president Mahube Molemela for that order to be reconsidered, saying his grounds presented “exceptional, extraordinary, unprecedented and/or novel issues, which cry out for adjudication”.
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.
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.
Ramaphosa has, through his interdict, avoided appearing in the dock as a criminal accused. But Zuma has kept his private prosecution on the roll as he pursues his appeals.
This situation is unprecedented
— Former president Jacob Zuma in his reconsideration application
In his reconsideration application, Zuma set out his grounds for why the SCA should reconsider. He said his prosecution was against Ramaphosa in his personal capacity, but the interdict application was instituted “by a fictitious legal persona called ‘The President of the Republic of South Africa’ cited in his official capacity”.
But the president, as an office, had no direct interest in the alleged criminal activities of Ramaphosa, said Zuma.
“This situation is unprecedented,” he said.
Zuma said Ramaphosa’s interdict application was “preliminary litigation” ahead of a criminal trial and courts had said before that this “ought not to be countenanced by the courts” unless it was in the interests of justice. There were no exceptional circumstances that warranted this, he said.
While the high court had said he had abused the court’s process, this kind of finding should only be made in the clearest of cases, said Zuma. But here it was “premised on the most tenuous and logically unsustainable grounds”.
He did not expand on what these grounds were and why they were tenuous and logically unsustainable.
In its July judgment, a full bench of the Johannesburg high court reasoned that the prosecution was an abuse of the court’s process because it was brought with an ulterior purpose, which was to trigger the ANC’s step-aside rule ahead of its conference in December 2022.
The court looked at the chronology of events in detail and said Zuma’s version was “far-fetched”.
“Having waited almost 16 months after requesting the president to institute an enquiry to issue the summons, he [Zuma] has offered no reason why he could not wait until the new year to do so,” it said.
The court added that the charges would not lead to a conviction “as they are grounded on conduct that does not constitute a criminal offence”.
The Maughan/Downer prosecution was also set aside — by the Pietermaritzburg high court — and the SCA refused to hear an appeal against it. Zuma has also applied for a reconsideration of the SCA’s refusal of his application to appeal, and the application is still pending.
In his application he said though the cases are not identical, there were “sufficient overlaps” that may “well require the simultaneous referral of both appeals to the same bench, in the event that they are successful”.
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