News24.com | Ramaphosa's legal team criticises attempts by Zuma to privately prosecute president

Former president Jacob Zuma and President Cyril Ramaphosa. Photo: Sarel van der Walt

• President Cyril Ramaphosa's senior counsel has told the Gauteng High Court the private prosecution against him was unlawful and in breach of his constitutional rights.
• His legal team urged the court to declare the summons issued by former president Jacob Zuma on 15 and 21 December 2022 as unlawful, unconstitutional, and invalid.
• Zuma's private prosecution is an unlawful legal undertaking that breaches Ramaphosa's constitutional rights, his counsel has told the court. 

Courts are constitutionally mandated to shield applicants, as is the case of President Cyril Ramaphosa, from having their dignity and reputation compromised in "frivolous private prosecutions that do not comply with the Criminal Procedure Act (CPA)".

This was the main argument presented by Ramaphosa's senior counsel, Ngwako Maenetje, as former president Jacob Zuma returned to the Gauteng High Court in Johannesburg on Wednesday in his attempt to privately prosecute Ramaphosa. 

Zuma accuses Ramaphosa of being an accessory after the fact following the alleged leaking of his personal medical records.

In this case, Maenetje said, his client deserved even more protection from the court as this challenge by the former president was a "frivolous and unlawful prosecution that breaches Ramaphosa's constitutional rights".

He added Ramaphosa, the individual, could not, in this case, be divorced from the title he held as president of the country, and the case smeared him and his office, compelling him to approach the court on a civil basis to have the case interdicted. 

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Maenetje said Ramaphosa was seeking to declare the summons - issued by Zuma on 15 and 21 December 2022 - as unlawful, unconstitutional, invalid, and of no force or effect.

"My client also seeks the reviewing and setting aside of the summons and the court to declare the interpretation of the nolle prosequi certificates, dated 6 June 2022 and 21 November 2022, related to the applicant [Ramaphosa], as unlawful, unconstitutional, invalid."

He also called on the court to review and set aside the nolle prosequi certificates, and to interdict Zuma from any private prosecution of the applicant concerning this case.

At the core of Zuma's case against Ramaphosa is that the president failed to take any action against advocate Billy Downer's so-called transgression of leaking his medical records.

Zuma also argued Ramaphosa "was acting with personal animosity and to drive a personal campaign of undue vilification" against him.

Maenetje said this was an unlawful act by Zuma, and the president had referred Zuma's complaints to the justice minister for investigation.

He added the CPA set preconditions for a private prosecution to prevent potential harassment by a private party who might be motivated by personal interests.

The first requirement, according to Maenetje, as set out in section 7 of the act, was a need for a valid nolle prosequi certificate, which confirmed the National Prosecuting Authority declined to prosecute a specific person or persons for the alleged crime described.

He said:

Maenetje said contrary to the requirement, Ramaphosa did not fit the legal classification of a suspect as envisaged in the CPA.

He argued the nolle prosequi certificate should be obtained from the DPP, and in it, the DPP must certify s/he had seen the statements or affidavits on which the charge was based on and that s/he declined to prosecute at the instance of the State.

"This is a necessary safeguard to ensure the DPP has, in fact, studied the facts of the case, applied their mind, and decided not to prosecute the suspect for the alleged offence.

"Zuma did not have such a certificate that referred to Ramaphosa; hence he did not get out of the starting blocks, and both the summons and the purported prosecution were rendered unlawful," said Maenetje.

Zuma's legal team, led by advocate Dali Mpofu SC, added they would respond after lunch.

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Zuma was accompanied in court by his daughter, Duduzile Zuma, Jacob Zuma Foundation spokesperson Mzwanele Manyi as well as allies Ace Magashule and Carl Niehaus, among others. 

The foundation questioned why Judge Selby Baqwa of the Gauteng High Court in Pretoria was part of the full bench in the Gauteng High Court in Johannesburg on Wednesday.

"Does this mean the High Court in Johannesburg is running short of judges to the point that Judge Baqwa had to be imported from the Gauteng High Court in Pretoria?" Manyi asked.

He also questioned why Judge Lebogang Modiba was presiding when, according to him, Baqwa was the most senior of the three judges.