A high court has thwarted former president Jacob Zuma’s attempt to privately prosecute a reporter and state prosecutor who had disclosed his medical condition, ruling that a previous order that barred him from doing so would stand even if he appealed against it.
Zuma has sought to prosecute journalist Karyn Maughan and senior counsel Billy Downer on charges of breaching his privacy by disclosing medical records. But the Pietermaritzburg high court interdicted Zuma in June from pursuing the private prosecution, saying it is an abuse of process and has a hidden agenda.
Undertaking
Zuma’s lawyers did not provide an undertaking to Maughan and Downer that should he lodge an appeal, he would not pursue a private prosecution.
Maughan and Downer then applied for an order to ensure that the interdict would remain in force even if Zuma appealed against it, arguing that their rights to freedom of expression, media freedom and a fair trial would be violated otherwise.
Zuma — who has yet to lodge such an appeal — opposed their application, saying it was premature and not urgent.
He accused them of double standards, saying they were doing the same thing he had done by challenging the legality of his prosecution.
But judges Gregory Kruger, Jacqui Henriques and Mokgere Busi Masipa dismissed Zuma’s arguments and granted Maughan and Downer’s application, saying they had shown exceptional circumstances that justified the order.
‘Abuse’
The court noted it has previously termed Zuma’s private prosecution an “abuse” and brought for an ulterior purpose, “to seek the removal of Downer as prosecutor” in the arms deal trial, in which Zuma is a co-accused. “The findings of this court in the main judgment,” the full bench said, “were aimed at bringing an end to the abuse inherent in the private prosecution, which […] would continue if the execution order sought is not granted.”
Maughan argued her freedom of expression and freedom of the media would be violated.
The court summarised Zuma’s response, saying: “Whenever he challenges the constitutionality of his prosecution ... it is labelled ‘Stalingrad’. Yet when Maughan and Downer do exactly the same, it is labelled an exercise in their constitutional rights.”
The court said this argument is “flawed” for two reasons.
First, the court noted “Stalingrad” is said to be Zuma’s “strategy by his former legal representative”, referencing Kemp J Kemp in 2007. The full bench said Zuma “never disavowed this defence strategy”. In fact, said the court, having come to its conclusions about the ulterior purpose behind the private prosecution in their June judgment, “this ... clearly evidences the Stalingrad strategy”.
Second, the court said Maughan and Downer were not challenging the constitutionality of private prosecution. They were “exercising their common law rights not to be subjected to an unlawful prosecution which is an abuse of process”.
Zuma is not prevented from lodging an appeal, but now the court has regulated the effect that it would have on Maughan and Downer.
Update: August 3 2023
This story has been updated with new information.
Correction: August 4 2023
In an earlier version of this story, we incorrectly said Zuma had not filed an appeal against the June judgment; he filed his second appeal on August 3.
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