KwaZulu-Natal director of public prosecutions Elaine Zungu has rubbished claims by former president Jacob Zuma that President Cyril Ramaphosa was always a suspect in his private prosecution against prosecutor Billy Downer and journalist Karyn Maughan.
“With all due respect, it defies logic that the applicant [Ramaphosa] could have been a suspect,” she said in an affidavit filed in the high court in Johannesburg on Monday.
Zungu’s affidavit was filed in answer to Ramaphosa’s court bid to set aside his prosecution by Zuma as unlawful and unconstitutional. The president has already obtained an interim interdict against Zuma and now wants to make the interim interdict final, putting an end to the prosecution.
In a separate private prosecution, Zuma charged Downer and Maughan, alleging they had breached the National Prosecuting Authority (NPA) Act when Downer gave Maughan a medical report about him that was later filed in court.
Zuma later charged Ramaphosa as an “accessory after the fact” because when he asked Ramaphosa to investigate, the president failed to act, he alleged.
Zungu was the prosecutor who issued the nolle prosequi certificates declining to prosecute Downer and Maughan. The same certificates were then relied on by Zuma to launch his private prosecution against Ramaphosa for being an accessory.
But Zungu said “at all relevant times” when she was issuing the certificates, Zuma only referred to two suspects: Downer and Maughan.
She said it was evident Zuma never contemplated Ramaphosa as a suspect because in his statement in support of his criminal complaint against Downer and Maughan he said he had asked Ramaphosa to investigate and had named him “witness No 2”.
“It is nonsensical that the applicant [Ramaphosa] should be both a witness and an accused,” said Zungu. It was “incomprehensible” that Zuma “now, in a blink of an eye, having received the certificate of nolle prosequi ... deems the applicant to be a suspect. The applicant cannot, colloquially speaking, at the same time be the game ranger and the poacher.”
When she issued the certificate no complaint of accessory after the fact had been laid with the police or investigated against Ramaphosa. She never considered a charge that Ramaphosa was an accessory after the fact “as it was never presented to me for decision”, said Zungu.
She was also not authorised to decide or consider a case docket from another province as her jurisdiction was limited to KwaZulu-Natal. “I simply do not have the statutory power and authority to do so.”
Zungu said nolle prosequi certificates are “province-specific”, and could only be used in the area of jurisdiction of the director of public prosecutions who issued them. The certificates she issued in respect of Downer and Maughan were for the KwaZulu-Natal jurisdiction, so Zuma was precluded from using the certificates in the high court in Johannesburg.
Also, the offences were alleged to have been committed in Pretoria, so the Johannesburg court should not have jurisdiction.
However, Zungu said when she wrote in the nolle prosequi certificate she declined to prosecute “any person”, “any person” meant “all living persons” and that would include Ramaphosa. But she agreed it was a “matter of interpretation”.
She did not want “to enter the fray” between Ramaphosa and Zuma, but any insinuation that she was shielding Ramaphosa is “mischievous”.
“I depose this affidavit solely to be of assistance to the above honourable court,” she said.
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