Zuma's private prosecution is 'unlawful, unconstitutional and invalid', Ramaphosa argues

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Cyril Ramaphosa.
Cyril Ramaphosa.
Yeshiel Panchia/News24
  • President Cyril Ramaphosa has, in court papers, said the private prosecution Jacob Zuma wants to pursue against him is unlawful, unconstitutional and invalid.
  • He says the basis of Zuma's charges doesn't constitute a criminal offence and there are ulterior motives to the private prosecution.
  • Ramaphosa further said that granting a private prosecution against him would infringe on his rights.

President Cyril Ramaphosa says the private prosecution which former president Jacob Zuma intends bringing against him has an ulterior motive and is unlawful.

Last year, on 15 and 21 December, Zuma issued Ramaphosa with a summons accusing him of being an accessory after the fact, or alternatively, defeating the ends of justice.

This related to his other private prosecution - where Zuma accused News24 legal journalist Karyn Maughan and Senior State Advocate Billy Downer of violating the NPA Act because Maughan obtained publicly available court papers from NPA advocate Andrew Breitenbach. Those documents contained a sick note from one of Zuma's lawyers.

Zuma now further accuses Ramaphosa of being criminally liable because he failed to act after he wrote to the president, asking him to investigate the matter.

In an affidavit by Ramaphosa, handed to the High Court this week, the president said the summons was "unlawful, unconstitutional and invalid", and asked the court to set it aside.

He outlined that Zuma had relied on the nolle prosequi certificate – a document issued by the NPA stating it did not intend to prosecute – that was expired by the time a summons was issued against him.

EXPLAINER | Zuma vs Downer and Maughan: Everything you need to know

The private prosecution also contravened the constitution, Ramaphosa argued, adding that the charge in the summons was "frivolous and vexatious".

"The private prosecution is for an ulterior purpose. The complaint on which the alleged offence against me is based does not constitute a criminal offence.

Former president Jacob Zuma.

"The prosecution could not genuinely be for a purpose of obtaining a criminal conviction. It is an abuse of court processes for an ulterior purpose."

Zuma vs Maughan, Downer

In his affidavit, Ramaphosa further states that when the Director of Public Prosecutions (DPP) in KwaZulu-Natal reviewed Zuma's complaint against Maughan and Downer, it was concluded that his medical document was public "due to it having been filed as part of the court papers".

"This was not confidential material because it had no particulars about the nature of the illness or treatment," said Ramaphosa about the DPP evaluation on whether to prosecute or not.

He added that the DPP had also concluded that there was no evidence that any crime was committed by Downer or any member of the prosecution team, leading to the State declining to prosecute.

Ramaphosa further said that the nolle prosequi certificate relating to the private prosecution of Downer did not relate to him as a suspect.

"It also does not relate to a charge against me. It related to an offence allegedly committed on 9 August 2021 which is the primary offence of the NPA Act.

"It [the certificate] is not for the offence of an accessory after the fact or defeating the ends of justice."

Ramaphosa added that there was no record of him ever being a suspect under investigation for contravening the NPA Act.

Adriaan Basson | Zuma vs Maughan: Media freedom goes on trial 

"The absence of a nolle prosequi certificate that relates to me and a charge against me means that Mr Zuma is attempting to bypass the NPA by privately charging me for alleged offences that were never considered by the NPA and in respect of which the DPP has never been issued a nolle prosequi certificate. 

"This contravenes the provisions of the [criminal procedures act] and is unconstitutional and invalid."

Ramaphosa said the nolle prosequi certificates also state that the crime allegedly committed occurred on 9 August 2021.

"It is practically impossible that I could have committed the crime of accessory after the fact or defeating the ends of justice on 9 August 2021, before the request was made to me to investigate."

Last month, the Gauteng High Court granted Ramaphosa an urgent interdict pausing Zuma's private prosecution. The order bars him from taking his private prosecution further at this stage.

On Tuesday, TimesLive reported that Zuma had approached the Constitutional Court directly to overturn the High Court's interim interdict.

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