Zuma’ sprosecution ‘for ulterior motive’
• Ramaphosa argues that the case aims to harass him for political ends
Former president Jacob Zuma’s basis for seeking to privately prosecute President Cyril Ramaphosa is “invalid” and is brought to “harass [Ramaphosa] for political ends”, the Johannesburg high court has heard.
Zuma wants to prosecute Ramaphosa privately for his alleged failure to act when Zuma alerted him to alleged unlawful conduct by prosecutor Billy Downer.
Zuma alleges that Downer disclosed his (Zuma’s) private medical information in 2021 to senior legal journalist Karyn Maughan, supposedly in breach of prosecuting legislation.
Zuma’s lawyers wrote to Ramaphosa requesting an inquiry into this alleged unlawful act, as it concerned a member of the National Prosecuting Authority (NPA) who was prosecuting Zuma (and French arms company Thales) in the arms deal criminal trial in Pietermaritzburg.
Ramaphosa told Zuma the complaint had been referred to justice minister Ronald Lamola as Lamola was considered the relevant authority.
After this, Zuma laid charges against Downer. Zuma indicated in the police docket that this complaint extended to “all persons as reflected in the documents” and other alleged criminal conduct. After the director of public prosecutions (DPP) declined to prosecute, Zuma requested a nolle prosequi certificate about Downer. This certifies the NPA’s refusal to prosecute a suspect and is required before pursuing private prosecution. He obtained this in June.
Zuma obtained a second certificate, in November 2022, which stated the NPA declined to prosecute “any person”. Based on these two certificates, Zuma sought to privately prosecute Ramaphosa, as an accessory to the alleged disclosure.
Before a full bench of the Johannesburg high court last week, Ramaphosa sought to stop Zuma prosecuting him.
Ramaphosa argues the certificates relied on do not refer to him or an offence he committed and failed in other procedural ways. As a result, the certificate is invalid and thus any summons issued is also invalid.
Ramaphosa also argues Zuma’s prosecution “is for an ulterior motive” and instituted “to harass [Ramaphosa] for political ends”.
The second certificate is so vague, Ramaphosa’s senior counsel Ngwako Maenetje said in court, it is now “open to the world” so that anyone can be prosecuted off it. His lawyers argue there is “no mention at all” of these offences in the certificate Zuma relies on.
Ramaphosa also argued the relevant court administrators, before issuing the summons against Zuma, “did not apply their minds”. This, coupled with other procedural grounds, warrants the entire private prosecution against Ramaphosa being dismissed.
The time to issue proceedings had expired for the first certificate, he also argued.
Ramaphosa argues that the only context in which his name appeared was when Zuma noted investigations Ramaphosa was conducting at the time. “He was not mentioned as a suspect or an accomplice,” Ramaphosa’s lawyers said in heads of argument.
Argues Ramaphosa: “It is not a criminal offence to fail to establish a commission of inquiry.”
Ramaphosa also noted the timing of the prosecution as coinciding with the ANC’s 55th National Conference, where Ramaphosa stood for re-election as ANC president. Because of the “step aside rule”, ANC members are prevented from contesting election results if they have pending criminal charges. This was the “purpose” of Zuma’s summons, Ramaphosa argues, making it “a blatant abuse of process”.
On Wednesday the DPP’s lawyer Frank Mothibedi also confirmed in court that “at no stage” was Ramaphosa cited as a suspect.
Zuma argued that a number of responses including the certificates do not relate to Ramaphosa. Zuma says when he used the term “investigators” in his complaint affidavit, this could refer only to accomplices. Zuma also says there is nothing vague about the certificate. There is nothing unusual for a nolle prosequi certificate to indicate those “in connection” with the alleged offence, argued Zuma’s lawyer Dali Mpofu.
Zuma also argued that time to institute proceedings had not lapsed as either the June certificate was prevented from lapsing by virtue of the proceedings against Downer and Maughan, or the later certificate reviving the previous one.
The former president contends that legal argument about vagueness applies only to “legislation”, not certificates. There were internal remedies Ramaphosa did not pursue.
Zuma also denied he instituted proceedings for political gain. Ramaphosa has not done enough to overcome the burden of proving ulterior motive.
Judge Selby Baqwa said that DPP Shamila Batohi noted the documents were never before her to warrant her considering Ramaphosa as a suspect. But Mpofu stressed this was not true, citing various documents where Ramaphosa’s name appeared.
Zuma also called the NPA’s conduct “disgraceful”.
RAMAPHOSA ARGUES THE CERTIFICATES … DO NOT REFER TO HIM OR AN OFFENCE HE COMMITTED AND FAILED IN OTHER PROCEDURAL WAYS