The Johannesburg high court on Thursday rejected a complaint by former president Jacob Zuma that the court had “unfairly cut short” the argument by his counsel, Dali Mpofu, and that this amounted to “a Zuma law” because other litigants were not treated this way.
The remark about “a Zuma law” was “utterly inappropriate”, said presiding judge Lebogang Modiba on behalf of a full bench. The court refused a request that Mpofu have more time to argue, adding the court had full written argument.
The court was hearing the second day of argument in an application to interdict a private prosecution by Zuma of President Cyril Ramaphosa. He has already obtained an interim interdict preventing any further steps in the prosecution.
Over Wednesday and Thursday, the president sought to persuade the court to make the interdict final, putting an end to prosecution forever. Ramaphosa argued the prosecution was unlawful, brought with an ulterior purpose and was an abuse of court process.
Zuma has charged Ramaphosa with being an “accessory after the fact” in relation to a separate private prosecution he is pursuing against prosecutor Billy Downer and journalist Karyn Maughan over the “leaking” of a document that contained medical information about Zuma, which was later disclosed in open court. Zuma charged Ramaphosa as an accessory because when his lawyers wrote to the president asking that the conduct of National Prosecuting Authority (NPA) officials be investigated, the president failed to act, Zuma said.
At the beginning of the day’s proceedings, Modiba reminded all the lawyers of the time allocations they had agreed to: Mpofu had until 11am to finish his argument.
As 11am approached, Mpofu was still arguing on what his team had raised as in limine, or preliminary points, in particular that the court did not have jurisdiction to hear Ramaphosa’s objections and that he had brought them prematurely.
He only began to address the crux of Ramaphosa’s case — whether the prosecution was lawful, brought with an ulterior purpose and whether the charge was frivolous and vexatious — in the last 10 minutes of his allocated time.
Despite a few reminders from Modiba about time, with her twice asking him to “round up”, he continued on until 11.30am.
“Mr Mpofu, you have consistently ignored the directives I have given regarding time. Consistently. I’ve asked you to round up. It’s now 11.30am. You were supposed to have finished at 11am,” Modiba said.
After tea, Modiba brought up the complaint by Zuma, apparently conveyed to the bench during the lunch break. She said she wanted to place on record that the time allocations had been agreed to by all the parties. “We did not in any manner curtail the time allocated to anyone,” she said.
In fact, Mpofu was afforded almost an hour-and-a-half more time than he had been allocated, she said. Mpofu began his argument on Wednesday afternoon and went almost 30 minutes over time. At his request, court began half-an-hour early on Thursday morning. He had also gone on until 11.30am, when he was supposed to end at 11am, she said.
“The notion that this court is unfair to his client has no basis because this court has actually been extremely accommodating and has afforded substantially more time ... than was agreed,” she said. That gave him an unfair advantage over the other parties, who had stuck to their time allocations, she said.
In the end, Mpofu argued comprehensively on his team’s own in limine objections to Ramaphosa’s case: whether the court had jurisdiction to hear Ramaphosa’s application, whether the application was premature and whether Ramaphosa, as president, had legal standing to bring the application. But much less of his oral argument was focused on Ramaphosa’s central arguments about the lawfulness of the prosecution.
Ramaphosa’s counsel, Ngwako Maenetje, said: “The first respondent [Zuma] has to raise all these in limine points because when we go to the merits, the true merits, there isn’t a case.”
One of Ramaphosa’s key arguments was that Zuma would never be able to secure a conviction on the charge, making the prosecution frivolous and vexatious.
Maenetje said a criminal offence would require that the president acted unlawfully and intentionally.
Yet when Zuma’s lawyers had written to the president to complain about Downer, he had referred the matter to justice minister Ronald Lamola and suggested he take it up with the Legal Practice Council (LPC), which has oversight over the ethics of legal practitioners. Ramaphosa had acted consistently with the constitution, said Maenetje.
“Where is the unlawfulness when the president acts consistently with the constitution?” He said it was a “classic” case of abuse of court process.
Mpofu did not address this last argument by Maenetje in his oral address in court. But in his written argument, he said this argument ought to be raised in the trial itself. But in any event, there was a case for Ramaphosa to answer because “close to two years after the commission of the principal crime”, no investigation had been carried out or referred to the LPC.
Judgment was reserved.
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