Sunday Times E-Edition

Zuma tests the courts in battle with Ramaphosa


● It was no surprise that counsel for former president Jacob Zuma spent much of their time this week arguing that the court did not have jurisdiction to hear President Cyril Ramaphosa’s application to interdict Zuma’s private prosecution against him.

If the court were to agree, it would mean the end of Ramaphosa’s case: no matter how unlawful or weak the private prosecution, vindication could only come later. Ramaphosa would have to oppose all the issues in the criminal court as “the accused ”— with the political consequences that would entail.

Zuma is charging Ramaphosa as an “accessory after the fact” in connection with a separate private prosecution he is pursuing against prosecutor Billy Downer and journalist Karyn Maughan for allegedly “leaking”a document about Zuma’s medical condition. Ramaphosa’s alleged crime is that when Zuma’s lawyers wrote to him as president demanding an investigation, he failed to act.

Ramaphosa has already obtained an interim interdict preventing any further steps in the prosecution. This week, he asked a full bench of the Johannesburg High Court to make the interdict final and put a permanent end to the prosecution, saying it is unlawful, brought with an ulterior purpose — on the eve of the ANC elective conference in December — and has no hope of succeeding.

But Zuma argued that Ramaphosa was in “the wrong court”. His counsel, Dali Mpofu

SC and Lerato Moela, said Ramaphosa was essentially challenging Zuma’s “title to prosecute”. But, they argued, there is a specific procedure under the Criminal Procedure Act

— set out in section 106 — for an accused person to dispute a prosecutor’s title to prosecute. This was the route open to Ramaphosa, and it should be brought at his criminal trial, they said.

In his court papers, Zuma said Ramaphosa was seeking special treatment from the courts. Zuma said when he had tried to quash his prosecution in court, which he thought was politically motivated, he was rejected. “The applicant’s attack on his private prosecution is no different from that of mine more than a decade ago,” said Zuma.

The idea of a “Zuma law” was raised again in court on Thursday when he complained that Mpofu had his argument unfairly cut short by the court. Presiding Judge Lebogang Modiba explained why this remark was “utterly inappropriate”: time allocations had been agreed to by all the parties. And, in fact, Mpofu had been given an extra hour-and-ahalf than what was agreed, she said.

Moela began by quoting a 2008 Constitutional Court judgment, which counsel and judges referred to as “the Thint judgment”. The judgment related to two applications: in one, Zuma was the first applicant.

Moela quoted former chief justice Pius Langa saying that “in general” and “in the ordinary course of events”, where the purpose of preliminary litigation appeared merely to delay criminal proceedings, the courts should not entertain it. Langa added: “There can be no absolute rule in this regard, however. The courts’ doors should never be completely closed to litigants.”

Moela said Ramaphosa’s bid to interdict Zuma’s private prosecution sought to delay a criminal prosecution.

This stance is different from what Zuma has argued, for years, in relation to himself.

The Thint case concerned the validity of search and seizure warrants. Zuma’s objections to the lawfulness of these could have been raised during the criminal trial. This route was not followed by Zuma. And, though the prosecution sought to block an appeal because it would delay the criminal trial, the ConCourt decided it was in the interests of justice to grant Zuma leave to appeal. It entertained his case.

Zuma also used civil proceedings to try to set aside the decision to prosecute him on the ground that he had not been given an opportunity to make representations to the National Prosecuting Authority. His counsel, Kemp J Kemp SC, even argued in the high court that his application was “akin” to proceedings under section 106 of the Criminal Procedure Act, said the judgment. Judge Chris Nicholson rejected this aspect of Kemp’s argument, but still entertained Zuma’s application and found in his favour.

The Supreme Court of Appeal (SCA) in 2009 disagreed with Nicholson’s judgment, but its judgment was not based on jurisdiction or on whether he should have used a Criminal Procedure Act process to challenge his prosecution. As with the Constitutional Court in the Thint matter, the SCA entertained Zuma’s case.

Indeed, now-retired Justice Louis Harms said: “The litigation between the National Director of Public Prosecutions and Mr Zuma has a long and troubled history and the law reports are replete with judgments dealing with the matter.”

So, even in 2009 preliminary litigation was the order of the day when the shoe was on the other foot and Zuma was the accused.

But more important is how South Africa’s appellate courts treated these applications by Zuma: they were never rejected on the basis of jurisdiction. They were not rejected on the basis that Zuma was seeking to delay his day in court. In both, the SCA and Constitutional Court entertained the applications.

Moela also referred to the more recent judgment of retired SCA justice Malcolm Wallis in the Moyo case, which concerned the constitutionality of the Intimidation Act. In his judgment, Wallis was critical of criminal trials being postponed pending approaches to the civil courts.

Wallis said the high court should have refused to entertain the case. But when it went to the Constitutional Court, it entertained an appeal and its finding on the Intimidation Act put an end to the criminal prosecutions at the root of the matter. In the Moyo case, Wallis said: “The question in every case is one of the interests of justice.”

There was a debate between the two sets of lawyers about whether courts should entertain preliminary litigation when it was “in the interests of justice” or only in exceptional circumstances, as argued by Mpofu. Ramaphosa’s counsel, Ngwako Maenetje SC, said the test was clearly in the interests of justice and Ramaphosa’s case was one that “cries out” for the intervention of the court.

He argued that the section 106 route was not the only one available to Ramaphosa to vindicate his rights. This was “the core question”, Modiba suggested.

If the court accepts that it can entertain Ramaphosa’s case on the basis of the interests of justice, it will still have to decide whether the prosecution is lawful. Jurisdiction is about getting one’s foot in the door.

But if the court does decide to entertain the interdict application, it would not signify one law for Zuma and one for Ramaphosa. The track record of our appellate courts — in cases Zuma should know well, having been a party to some of them — demonstrates this.

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