Former president Jacob Zuma’s private prosecution of advocate Billy Downer and journalist Karyn Maughan was an “abuse of process ... instituted for ulterior purposes and with unclean hands”. For that reason, summonses issued by him must be set aside, three KwaZulu-Natal judges have ruled.
Judges Gregory Kruger, Jacqui Henriques and Thokozile Masipa, who heard Downer and Maughan’s applications to effectively quash the private prosecutions, ruled on Wednesday that they were part of Zuma’s campaign to discredit Downer, who is lead prosecutor in Zuma’s arms-deal trial.
The judges said that Zuma’s “personal animosity” against Maughan was evident from the affidavit he filed.
“We agree that the only inference to be drawn from this, coupled with the social media attacks on her (by Zuma’s daughter and the Jacob Zuma Foundation) are done with the intent to intimidate and harass her and prevent her from performing her duties as a journalist. It is an improper motive,” they said.
In their 63-page ruling, the judges went through and criticised each of Zuma’s submissions as to why he was entitled to prosecute the advocate and the journalist, based on allegations that Downer leaked his confidential medical records to Maughan, which he said was a contravention of the NPA Act.
The document was submitted to court by the state and Zuma’s own lawyers, in his bid to have his criminal trial delayed because he was in hospital.
“We agree that the charge against Downer is unsustainable and with his submission that the private prosecution is an attempt to further delay the criminal prosecution and to prevent him from performing his duties. It constitutes an abuse of process,” said the judges.
The issue was also raised by Zuma in his special plea before trial judge Piet Koen (who later recused himself). Koen, in dismissing the plea, ruled there was no merit to Zuma’s complaint.
The judges said they agreed with Koen’s ruling. And there was no prospect of any success in the private prosecution.
With regard to Maughan, they said Zuma did not have the required nolle prosequi certificate from the director of public prosecutions when summons was served on her. A second certificate, issued later, did not name her as a suspect.
The judges set aside the summonses, interdicted Zuma from reinstituting any further public prosecutions against Downer and Maughan and ordered Zuma to pay punitive costs.
Mzwanele Manyi of the Jacob Zuma Foundation described the judgment as “bizarre”. He said: “From where we sit, the law is clear on this matter. The NPA Act has been transgressed. We can’t see how the court can see nothing wrong with it. We don’t understand why the court has made this judgment.
“We see it as a travesty of justice. This, as we see it, is the notorious Zuma law. Zuma will appeal it and the foundation supports him.”
Commenting on the judgment, media law expert and partner at Webber Wentzel Dario Milo said: “Maughan was simply doing her job.”
“This is a resounding victory for Karyn Maughan,” said Milo, “but also for [SA] media generally.”
The foundation said on social media: “Zuma will appeal this bizarre judgment ... as regards the private prosecution of adv Downer and Karyn Maughan.”
Pieter Du Toit of News24 said the news organisation was “pleased” with the judgment, because it sets precedent and “will guide any future private prosecutions”.
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