Nobody is required to “subordinate themselves” to a private prosecution if the state has not issued a valid nolle prosecui (unwillingness to prosecute) certificate related to the criminal charge against them, the high court in Johannesburg said on Monday.
The high court was explaining why it was granting an interim interdict to President Cyril Ramaphosa, prohibiting “any further steps” by former president Jacob Zuma in his private prosecution of Ramaphosa.
The interdict means that Ramaphosa will not have to appear in the criminal court on Thursday as per the summons issued by Zuma. The interdict will remain in place until the courts have decided the main case — part B — on whether the prosecution is lawful and constitutional.
Deputy judge president Roland Sutherland and judges Edwin Molahlehi and Marcus Senyatsi said that in SA’s legal system, “the only agent that can lawfully bring a criminal prosecution is the state”.
A private prosecution was an “exception to that exclusivity” and was “closely regulated” by the Criminal Procedure Act, requiring a nolle prosecui certificate subject to the act’s requirements, to be obtained from the National Prosecuting Authority (NPA). “Accordingly, the authority to conduct a private prosecution is one granted to a private person within the four corners of the nolle prosecui,” said the judgment.
The judges said Ramaphosa had raised a number of challenges to the validity of the nolle prosecui certificates Zuma had relied on, and to the certificates’ applicability to him.
If one of these challenges were to succeed when part B was argued, “the result would be to invalidate the summons”, said the judgment. “None of these claims is implausible on their own terms, even if they are ultimately found to be incorrect.”
Ramaphosa’s personal freedom was the right at stake, said the court. “Our history instructs us that it is a matter of pride that South Africans value and assert our freedom above all other considerations in the face of whatever adversity we chance upon to meet. Our law must guard that right and its exercise unreservedly,” said the judges.
The court found Ramaphosa had proved a prima facie case of the right to personal freedom being violated. It found he had satisfied the other requirements for an urgent interim interdict.
The court rejected Zuma’s argument that as a civil court it did not have jurisdiction to hear Ramaphosa’s interdict application and that the president should bring his objections before the criminal court. It referred to judgments — “clear authority”, it said — where private prosecutions had been challenged in the civil courts.
It was “plain” that the criminal courts were not the “exclusive route” to challenge a private prosecution, said the judgment. The judges added that the argument that cross-contamination between the civil and criminal courts should be avoided was “overstated”.
“In truth there is no substantive distinction between a criminal court and civil court. There is only one court, and the streaming of criminal cases and of civil cases to different judges is merely an organisational convenience,” said the judgment.
Zuma is charging Ramaphosa as an “accessory after the fact” in relation to charges the former president is pursuing against prosecutor Billy Downer and journalist Karyn Maughan.
In a separate private prosecution, he has charged the two with contravening the NPA Act over the disclosure, without the written consent of the NPA’s national director, of a medical report later filed in court during Zuma’s corruption trial. Ramaphosa’s alleged crime is that when Zuma’s lawyers wrote to him to complain about Downer and demanded an investigation, he allegedly failed to act.
Monday’s judgment listed some of the issues that the court would have to decide in part B. One of these was whether “in our law, state officials who are neglectful of duties are liable to criminal sanctions”. Zuma argued they were.
“This is a proposition that is both novel and radical, with extremely wide-ranging implications for the entire state apparatus,” said the judgment.
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