The Constitutional Court has dismissed an appeal bid by former president Jacob Zuma to pursue his private prosecution of Cyril Ramaphosa.
The order from the apex court on Monday should put an end to the attempted prosecution, which, despite a 2023 court order setting it aside, has been kept alive because of the appeal process.
Zuma launched his private prosecution of Ramaphosa in December 2022 on the grounds that he was an “accessory after the fact” to another alleged crime.
In a separate private prosecution, Zuma had brought criminal charges against prosecutor Billy Downer and journalist Karyn Maughan after Downer gave Maughan access to a document about Zuma’s health status that was later disclosed in open court.
Zuma alleged this was a crime under the National Prosecuting Authority Act. So far, Zuma has been unsuccessful with that prosecution, with the high court calling it an abuse.
The charge against Ramaphosa was that 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.
But the high court took a dim view of the prosecution when it was challenged in court by Ramaphosa. In July 2023, the high court said in its judgment that the prosecution was an abuse, would not lead to a conviction and was brought with an ulterior purpose — to trigger the ANC’s “step aside” rule, thereby preventing Ramaphosa from standing for president of the party at its December 2022 elective congress.
Zuma tried to appeal to the Supreme Court of Appeal and failed in February last year. He then, in October, approached the Constitutional Court.
Meanwhile, each time the prosecution went back to the criminal court, Zuma’s lawyers argued it should be postponed because he was appealing the high court’s order. However, the ConCourt is the last stop for appeals. The prosecution is due back again in the criminal court on Thursday.
In a brief order on Monday, the ConCourt said Zuma had not given an “adequate explanation” for his delay in applying for leave to appeal. There were also “no reasonable prospects of success on the merits of the application,” said the ConCourt.
In his application for leave to appeal to the ConCourt, Zuma’s attorney Thabo Kwinana said the reason for the delay was that Zuma and his previous attorneys were “remiss” in consulting on the way forward after the SCA gave its order.
On the part of the previous attorneys, “the matter literally fell through the cracks ... they found it difficult to arrange the necessary consultations during the intense period of electioneering and extensive litigation by [Zuma] and his legal team of counsel,” said Kwinana.
From Zuma’s side, the SCA decision came at a time when Zuma was busy with the “very demanding election campaign and unprecedented related litigation ... some of that litigation played out in this court,” said Kwinana.
Aggrieved by what had happened, Zuma decided on new attorneys, said Kwinana. But due to the long history of the litigation, Zuma’s new attorneys needed time to “study the full record and obtain advice from counsel,” he said.
He said Zuma “duly and humbly apologises” for the delay, but asked the court to “condone the late filing of the application”. The prospects of success of an appeal were “more than overwhelming”, he said.
The court's order said: “Condonation is refused.”
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