WRAP | Zuma's private prosecution of Maughan a violation of freedom of the media, Constitution - court

Zuma fails in attempt to privately prosecute Maughan, Downer

- Former president Jacob Zuma has once again suffered a loss in court, this time in the High Court in Pietermaritzburg.

- His private prosecution of News24 legal journalist Karyn Maughan and senior prosecutor Billy Downer was set aside on Wednesday.

- The judge ruled that Zuma also has to pay costs for all parties involved.

COMMENT

This is a magnificent judgment if you believe in the rule of law, Constitutionalism, and the freedom of the media, and there are many sections of the judgment that are noteworthy. But in paragraph 194, the full bench gets to it: Zuma's attempt to prosecute Maughan "is a meritless private prosecution which amounts to an abuse of process". 

- Pieter du Toit

FINDING

When viewed holistically we agree with Maughan that the private prosecution constitutes a violation of the rights recognised in s16(1) of the Constitution. The right to freedom of the media has been acknowledged by our courts

- Nkosikhona Duma.

FINDING

Having regard to the Respondent's [Zuma] affidavit, his personal animosity toward Maughan is exposed. She is alleged to have colluded, conspired and been in partnership with State prosecutors perpetuating a false narrative about his conduct toward litigation and the delays in the criminal trial. This is repeated on a number of occasions in the answering affidavit and his hatred, impatience and vitriol toward her is patently obvious.

- Nkosikhona Duma.

FINDING

The court accepted the arguments by Sanef, Media Monitoring Africa and the Campaign for Free Expression that Zuma's harassment of Maughan equates to a so-called SLAPP (Strategic lawsuit against public participation) suit, and that the court needs to protect journalists in cases like these.

"If one accepts the submissions of Maughan relating to the relief she seeks in the application to interdict the Respondent, then we agree with the first to third amici that the Respondent's private prosecution of Maughan has all the elements of a SLAPP suit in that, it relates to her obligations as a journalist to report on matters in the public interest. It infringes on her right to freedom of expression specifically, press freedom and the public's right to receive such information.

It has the effect of intimidating, harassing and silencing her as its ulterior motive and for reasons already mentioned in the judgment, the prosecution lacks prospects of success. If one accepts Maughan's submissions, then she has demonstrated that the Respondent's private prosecution has been instituted for the sole purpose of silencing her and not to vindicate a right."

- Adriaan Basson

Among the abuses Maughan has suffered on social media through the Jacob Zuma Foundation and his daughter Duduzile Zuma include such comments as:

- Criminally accused…You Look Good in Orange Sisi (it was attached with a manipulated picture of Maughan in prison uniform)

- Oksalalayo…According To Your White In Laws, YOU ARE A CRIMINAL!!!"

Judges comment on the above:

Maughan in our view has been harassed and prohibited from proper reporting and does so with a cloud hanging over her head and with the threat of either private prosecution in a criminal court or possible civil litigation being instituted against her. In addition, some of these comments may incite physical harm.

- Kaveel Singh

Zuma vs Maughan & Downer Judgement:

The judgement also highlighted instances of hostility by Zuma and his daughter Duduzile Zuma towards Maughan. It says:

"It is evident that the respondent (Zuma) harbours great hostility towards her and this is demonstrated in his affidavit and by the respondent's (Zuma) associates and supporters. The tweets annexed to the founding papers demonstrate that the applicant has repeatedly been maligned and threatened for her reporting of Zuma and his court matters.

It is evident that this emanates from members of Zuma's family, being his daughter and Mr Manyi, the spokesperson for the Jacob Zuma Foundation. Her (Maughan's) affidavit references instances of social media abuse by Zuma's daughter and the Jacob Zuma foundation."

– Kaveel Singh

FINDING

The Respondent [Zuma] has averred that Downer was cited in his personal capacity and because his alleged criminal conduct was performed for personal reasons and not in furtherance of his mandate as a prosecutor, the State Attorney had no authority to represent him (Downer) in this application... In the application before us, the State Attorney has not outsourced its functions to a private attorney and is indeed representing Downer itself. Consequently, this point in limine falls to be dismissed

- Nkosikhona Duma

Zuma's abuse of the courts must be stopped, the courts hold:

"For reasons that will become more apparent hereinafter, we are of the view that the Respondent (Zuma) comes to court with 'unclean hands' and consequently the private prosecution is an abuse and the court must sanction such conduct. 

- Pieter du Toit

FINDING

Quoting from the Van Breda v Media24  judgment by the SCA, the KwaZulu-Natal High Court highlighted these passages: "The right to freedom of expression is one of a 'web of mutually supporting rights' that holds up the fabric of the constitutional order. The right is not limited to the right to speak, but also to receive information and idea. The media hold a key position in society. They are not only protected by the right to freedom of expression, but are also the 'key facilitator and guarantor' of the right. The media's right to freedom of expression is thus not just (or even primarily) for the benefit of the media: it is for the benefit of the public.". The court then comments: "Such right we agree encompasses the right of journalists to report freely on matters of public interest without threats and without intimidation and harassment."

- Adriaan Basson

Zuma vs Maughan & Downer Judgement:

On a factual level, we know that Downer has denied making any disclosure to Maughan and authorising it. It is evident from both Breitenbach's affidavit and that of Maughan, that the exchange took place between her and Breitenbach and not Downer.

Downer was in no way involved in the disclosure to Maughan of the letter from Mdutywa (doctor's note). Downer correctly submits, in our view, that the charge against him in relation to counts 1 and 2 are unsustainable and as a consequence the prosecution is per se an abuse of the process of the court.

- Kaveel Singh 

FINDING

"At the time the Respondent [Zuma] filed the summons and summary of substantial facts and instituted the private prosecution, these facts were already within his knowledge. Despite this and despite Koen J's judgment, he persists in the private prosecution of Maughan. We agree that the only inference to be drawn from this coupled with the social media attacks on her are done with the intent to intimidate and harass her and prevent her from performing her duties as a journalist. It is done for an improper motive not with the intent of addressing any wrongdoing on her part."

- Adriaan Basson

FINDING

We are of the view that the respondent (Zuma) comes to court with "unclean hands" and consequently the private prosecution is an abuse and the court must sanction such conduct.

- Kaveel Singh

Zuma vs Maughan & Downer judgement:

The courts have found an abuse of process to exist where a litigant comes to court with "unclean hands" and dismissed a litigant claim. Such power is sparingly exercised as it prevents a litigant from having their day in court, which right is entrenched in the Constitution. The Concourt has endorsed the approach of dismissing a claim on the grounds of abuse.

- Kaveel Singh

FINDING

In relation to Zuma's allegation that Downer also "leaked" information to amaBhungane's Sam Sole, Judges Gregory Kruger, Jacqui Henrique and Mokgere Masipa found:

"Why does the Respondent [Zuma] raise this now again when it has already been dealt with in two other proceedings and disposed of in both the application for a permanent stay and in the s 106 plea proceedings before Koen J and in circumstances where this court does not have jurisdiction to deal with the charges in respect of this count? The only reasonable inference one can draw is that the respondent seeks to discredit Downer and prevent him from executing his duties as a prosecutor in the criminal trial."

- Adriaan Basson

Zuma vs Maughan judgement:

To date, none of the courts including the ConCourt... have made any findings that the respondent's (Zuma) rights were violated in any way. We agree that against this background the application by Downer and Maughan is an attempt, specifically by Downer, to prevent further abuse of the process of court and to ensure that the criminal trial proceeds.

The application is directed at ensuring that there is an end to the abuse of unlawful private prosecution and an end hopefully to the "Stalingrad" strategy.

- Kaveel Singh

FINDING

"[W]e agree with the submission by Downer that the private prosecution is an attempt to further delay the criminal prosecution and prevent him from performing and executing his statutory and professional duties. It constitutes an abuse of process."

- Adriaan Basson

COMMENT

This is a massive victory for media freedom in South Africa. Jacob Zuma's attempts to privately prosecute News24's specialist legal writer Karyn Maughan was a clear attempt to bully, intimidate and silence a journalist who has been reporting on his corruption case for 20 years. It is a victory for democracy and the Constitution that enshrines freedom of expression and freedom of the media. This was always an attempt by Zuma to distort attention from his own corruption trial. Maughan and News24 took the fight to Zuma and won!

- Adriaan Basson

A copy of the order. 

Photo: Kaveel Singh/News24

And in both matters - Downer and Maughan - Zuma has been ordered to pay costs on attorney and client own scale, as well as the costs of two advocates. That means, he needs to pay attorneys' and advocates fees for both Downer and Maughan, meaning four counsel.

It is severe. 

- Pieter du Toit

The High Court in Pietermaritzburg has made the following order (the full judgment is still to follow):

Zuma's summons issued for state advocate Billy Downer, which would have led to a private prosecution, is set aside by the court. "The respondent (Zuma) is interdicted and restrained from reinstituting, proceeding with", or from taking any further steps pursuant to, the private prosecution..."

The same order was issued in relation to Maughan.

- Pieter du Toit  

Zuma's application to privately prosecute prosecutor Billy Downer and journalist Karyn Maughan has been set aside according to Judge Paul Wallis.

Costs to be paid by respondents.

- Kaveel Singh

High Court judgment expected on Maughan, Downer application to set aside Zuma's private prosecution

The KwaZulu-Natal High Court in Pietermaritzburg is on Wednesday expected to hand down judgment in the applications by News24's legal writer Karyn Maughan and prosecutor Billy Downer to set aside the private prosecution brought by former president Jacob Zuma. 

It comes after Zuma accused Downer of leaking confidential medical information to Maughan in breach of the National Prosecuting Authority (NPA) Act. Both have brought applications to have the summons they were served reviewed and set aside.

Advocate Kate Hofmeyr for the Helen Suzman Foundation wants to reply to some of Advocate Masuku's comments from earlier.

Masuku objects to Hofmeyr replying. He says if the court grants her an opportunity to reply, he would want a chance to reply.

- Kaveel Singh

Advocate Geoff Budlender SC says private prosecution can be abused.

He uses the example of a business person prosecuting a competitor. He says this private prosecution is an abuse because it has ulterior motives.

Budlender concludes.

– Kaveel Singh

Advocate Geoff Budlender says there has only been a "token attempt" by Mpofu to address the argument that this private prosecution is "an abuse of process".

- Karyn Maughan

Budlender Snr asks why Advocate Breitenbach is not being prosecuted. He says it is because that would not slow down court processes.

"Because it will not delay Mr Zuma's prosecution. If Mr Breitenbach is prosecuted, he would be replaced with someone else.

"The person who did disclose the documents and letter is not charged."

- Kaveel Singh

Advocate Geoff Budlender now attacks Mpofu's claim that Downer is an "accessory after the fact" and points out that this is a charge levelled against a person who actively prevents the detection and prosecution of a crime.

There is no evidence of this, he says, adding that Zuma's lawyers are "trying to make up the law to suit their case" - by arguing that Downer broke the law because he did not do anything about Breitenbach's disclosure.

He says that Zuma has not charged Breitenbach because doing so would not result in what Zuma wants to achieve: A delay in his prosecution.

- Karyn Maughan 

Budlender Snr says the argument of accessory after the fact did not apply to Downer. He says receiving information is not a crime.

"With respect, Mr Zuma cannot make up the law to suit his own interests."

– Kaveel Singh

Advocate Geoff Budlender, for Downer, again stresses that there is no evidence that Downer was involved in the disclosure of the court papers to this writer, nor did he authorise it.

As a result, the case against the prosecutor is "fanciful", he says.

- Karyn Maughan

Advocate Geoff Budlender SC for Downer says Downer did not authorise or disclose any court documents or the sick note surrounding Zuma's private prosecution, contrary to Mpofu's earlier submissions.

– Kaveel Singh

Advocate Steven Budlender urges the bench to examine the letter that Zuma has based his private prosecution on to establish whether any confidential information was disclosed.

After pointing out that Judge Koen did find that there was a questionable basis for Zuma to claim that there was a breach of his confidentiality.

He also points out that Mpofu himself effectively admitted in argument that the letter did not contain any confidential information in the postponement argument.

- Karyn Maughan

Advocate Steven Budlender SC completes his replies to Mpofu's submission in under 30 minutes. Advocate Geoff Budlender SC for Downer now begins his replies. 

- Kaveel Singh

Advocate Steven Budlender says section 41 has no reach over court papers.

"What are we still debating, with respect?" Budlender Jnr contends that it cannot be that the sharing of the court papers carries a 15 year sentence.

- Karyn Maughan

Abuse of process: "The case is not just weak. It is non-existent and is a mirage," says Budlender.

– Kaveel Singh 

The NPA Act section used to justify the criminal prosecution of Downer and Maughan can only "self-evidently" only relate to information that is not in the public domain, Advocate Steven Budlender  argues.

- Karyn Maughan

Advocate Steven Budlender says that it was only in argument that Mpofu detailed what the case against Downer and Maughan actually is - and says it "falls apart" on examination.

He says Mpofu's argument suggests that it would be criminal offence for Downer to have shared a judgment with this writer, or even a copy of the Criminal Procedure Act.

He says that the NPA Act violation in question can only relate to information that is "confidential", not to court records that are public documents.

- Karyn Maughan

Budlender explains that the law governing prosecutors divulging court documents refers to confidential documents. He quotes law stating that all court documents are public, with some exceptions.

– Kaveel Singh

Advocate Steven Budlender points out that - contrary to claims by Zuma lawyers - this writer never gave a statement to the police and was never identified as a suspect.

He accuses Zuma lawyers of failing to address his argument that the nolle certificate used by Zuma to justify his private prosecution could not be a lawful basis for the prosecution.

- Karyn Maughan

Budlender on abuse of process: The motive was relevant and the merits were relevant. You heard no response to that.

You can accept that motive and relevance must be accepted as law.

– Kaveel Singh

Argument on first nolle prosequi certificate: Budlender says that even though it referred to only Mr Downer, it also is meant to refer to Ms Maughan.

He reads a letter from the NDPP Elaine Zungu, where she says that Maughan was not even a suspect.

– Kaveel Singh

Advocate Steven Budlender says Mpofu failed to back these preliminary points with any judgments and contends that these points were raised in a desperate effort to avoid the merits of the Downer/Maughan applications.

- Karyn Maughan

Budlender says Mpofu raised the point that Maughan had to join the Downer application, but chose not to – Budlender says Maughan has no need to join Downer's application and therefore wavered that right.

- Kaveel Singh

Advocate Steven Budlender says the case law that Mpofu has relied on to bolster his argument that Downer and this writer can only challenge their private prosecution in a criminal court have no relevance to this case - and then details why, explaining that Mpofu misrepresented the judgment given by Judge Piet Koen.

- Karyn Maughan

Budlender Jnr says that the constitution does not differentiate between civil and criminal courts, and counters Mpofu's argument that Downer and this writer could only challenge the Zuma private prosecution in a criminal court.

- Karyn Maughan