Former president Jacob Zuma has made out a “sufficient prima facie case” for his private prosecution of President Cyril Ramaphosa, “which is all that is required at this stage”, he said in papers filed in the Johannesburg high court.
Zuma disputed Ramaphosa’s claim that he could not prove the crime of accessory after the fact or defeating the ends of justice against Ramaphosa. “Pursuing a private criminal prosecution in those circumstances is frivolous and vexatious,” Ramaphosa said in his earlier affidavit.
Ramaphosa has already obtained an interim interdict against Zuma, preventing any further steps in the prosecution, and is seeking to make the interdict permanent, putting an end to the prosecution that he says is doomed to fail and has an ulterior purpose. The application is to be heard in May.
But Zuma insists that he has a “right to obtain criminal justice in respect of the offences committed by the accused”.
In a private prosecution in Pietermaritzburg, Zuma charged prosecutor Billy Downer and journalist Karyn Maughan with breaches of the National Prosecuting Authority Act, based on Downer giving Maughan a copy of a report on Zuma’s medical condition that was later disclosed in court proceedings.
He then charged Ramaphosa as accessory after the fact, saying Ramaphosa failed to act after he asked Ramaphosa to investigate Downer’s conduct.
Answering Ramaphosa’s claim that he could never succeed with his charges, Zuma said: “The bottom line is that there is a sufficient prima facie case which meets the definitional elements of the offence, albeit based on conduct in the form of an omission which is underpinned by a duty to act in terms of, inter alia, section 84(2)(f) of the constitution.”
Section 84(2)(f) of the constitution says the president is responsible for appointing commissions of inquiry.
Ramaphosa had said in his affidavit that when Zuma asked him to investigate Downer’s conduct, Zuma knew Ramaphosa did not have the legal authority to investigate alleged crimes and that the allegations against Downer and Maughan were the subject of pending criminal proceedings.
“I could not lawfully institute a parallel process to these court proceedings if what [Zuma] wanted me to investigate was alleged criminal conduct,” he said.
Zuma insists he has a “right to obtain criminal justice in respect of the offences committed by the accused”.
However, he had asked justice minister Ronald Lamola to look into the complaint and refer it to the body responsible for the oversight of legal ethics.
Zuma had said Ramaphosa asked Lamola to investigate and that Zuma was awaiting the outcome of this investigation, said Ramaphosa. “The complaint against me in these circumstances could never constitute a criminal offence,” he said.
But Zuma said all the definitional elements of the crime had been met on a prima facie basis. The issue concerned the merits of the charge and “squarely needs to be raised in the criminal proceedings themselves”, he said.
Zuma also said the National Prosecuting Authority and KwaZulu-Natal director of public prosecutions Elaine Zungu had “unfortunately and illegally discarded every pretence of objectivity, impartiality and independence by clearly taking sides and associating themselves, understandably, with their colleague [Downer], who is effectively the co-accused of the applicant”.
The NPA’s conduct was “nothing short of disgraceful and dishonourable”, he said.
He rejected Zungu’s claim that nolle prosequi certificates that were issued for the prosecution of Downer and Maughan were “province-specific” to KwaZulu-Natal; and that there was no jurisdictional basis to prosecute Ramaphosa in the Johannesburg court.
The nolle prosequi certificates issued for his private prosecutions of Downer and Maughan were the same ones he relied on for his later charges against Ramaphosa.
“Section 179 of the constitution provides for a single National Prosecuting Authority under the direction of the national director of public prosecutions and, where applicable, the minister of justice to which all prosecutors are answerable,” he said.
The “mere fact that the alleged lack of independence of the prosecution is at the centre of this matter makes it a national issue”.
He denied that, in his criminal complaint that led to the Downer/Maughan nolle prosequi certificates, he identified only Maughan and Downer as suspects. In her affidavit, Zungu had said that “at all relevant times” when she was issuing the certificates, Zuma referred only 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.
But Zuma said: “On a correct reading of the complaint it will be clear that there was no closed list of suspects. On the contrary, the open-ended list of suspects was squarely left to the investigation.”
The mere fact that someone was listed as a witness did not rule out their inclusion as an accused person “if the investigation and/or subsequent wishes of the complainant so dictate”.
“Similarly an accused person can ‘turn’ witness for the prosecution. There are no one-way streets in this regard,” said Zuma.
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