Another battering for Zuma as SCA dismisses 'without foundation' private prosecution

Another day. Another court loss for former president Jacob Zuma.

This time the Supreme Court of Appeal (SCA) has, in a scathing judgment, dismissed his application to overturn a previous ruling by three judges in KwaZulu-Natal which stopped his private prosecution of advocate Billy Downer — the lead prosecutor in Zuma’s arms deal-related trial — and journalist Karyn Maughan.

Zuma is intent on privately prosecuting Downer and Maughan for what he alleges are contraventions of the National Prosecuting Authority (NPA) Act, in that Downer leaked a document containing what Zuma claimed was his personal medical information to the journalist.

Three KwaZulu-Natal judges set aside the summonses and interdicted Zuma from initiating further private prosecutions against Downer and Maughan on the same charges.

The judges said the private prosecution was baseless, an abuse of court and instituted with ulterior motives.

However, Zuma noted an intention to apply for leave to appeal which would have suspended the judgment, meaning the private prosecution could continue in the interim.

Downer and Maughan then secured an order in terms of the Superior Courts Act to immediately enforce the full-bench ruling in spite of the appeal.

Zuma, in terms of the same act, had an automatic right to appeal this order.

And this was argued before the SCA last month.

On Friday, in a unanimous ruling, the court dismissed this appeal and ordered Zuma to pay punitive costs.

Judge Nathan Ponnan, who wrote the judgment, said the costs order was “as a mark of this court’s displeasure” because Zuma had made “scandalous” allegations that the KwaZulu-Natal judges were biased, not open-minded, impartial or fair.

“The allegations were made with reckless disregard of the truth. And, while not advanced during oral argument, they were not retracted. However, they ought not to have been made at all,” Ponnan said.

“Moreover, the previous admonition of this court, absent a proper factual foundation, is plainly deserving of censure.”

On the merits of the matter, Ponnan gave an abbreviated history of Zuma’s court challenges and said it illustrated “on any reckoning, the scale of litigation which is likely unprecedented in the South African courts justifiably attracts the epithet ‘Stalingrad’.”

The private prosecution was not the last attempt by Zuma to have Downer removed — in April this year he launched a second application for Downer’s removal after an unsuccessful attempt via a special plea at the start of the trial.

This had been set down to be heard later in October in the Pietermaritzburg high court.

“Mr Zuma has repeatedly attacked the NPA and Mr Downer in an attempt to discredit him as the prosecutor in the criminal case,” he said, noting Zuma’s assertions that Downer was a “political hitman” were “absent a true factual foundation”.

He also noted Zuma had indicated he would petition the SCA to hear an appeal against the full-bench ruling on the private prosecution and he would approach the Constitutional Court, if necessary, and whether Downer was prosecuted depended on this.

However, Ponnan effectively sounded the death knell on any appeal.

“The facts demonstrate the private prosecution is an abuse of the process of court for multiple reasons ... it was instituted as a further step in a sustained attempt by Mr Zuma to obstruct, delay and prevent his criminal trial — this is ulterior purpose which renders it unlawful.”

The judge said the private prosecution was a “patently hopeless case and was obviously unsustainable” even on Zuma’s own version of the facts.

Ponnan said it was undisputed that Downer had not made any disclosure to Maughan and it had been made by advocate Andrew Breitenbach, a member of the prosecution team.

Other judges had also previously ruled that there was no disclosure of confidential or private information — the doctor's note did not contain confidential information.

Turning to Maughan, Ponnan said she characterised her private prosecution as one that has been brought by a powerful former president against a journalist who has been reporting on his legal troubles in a manner that displeases him, which will have a chilling effect on her journalistic freedom and press freedom more widely.

“There is nothing to gainsay this,” he said.

“For the high court to have allowed the suspension of the main judgment pending an appeal would have been mutually incompatible with the conclusion reached by it that the private prosecution constituted an abuse.

“If Mr Zuma’s private prosecution is an abuse of the process, as the high court held, it follows that allowing it to be enforced pending an appeal will prolong and perpetuate that abuse. This will make a mockery of the high court’s judgment and will undermine confidence in the judiciary’s capacity to control its own judgments and to protect individuals from an abuse of process, including an unlawful, abusive and oppressive private prosecution.

“The only conceivable adverse consequence of the execution order on Mr Zuma is that his private prosecution will be delayed until the finalisation of the appeal process. The private prosecution is plainly not urgent ... and he will suffer no harm.”

Ponnan said should the court not dismiss the application, Downer and Maughan would have to appear in court again as accused on November 1 and on further dates in the future.

“On each occasion they are compelled to appear in the criminal dock, their personal liberty is further inhibited and human dignity further eroded. The indignity is compounded by the personal insults they, particularly Ms Maughan, has to endure on social media.

“Mr Zuma shrugs that the social media abuse of Ms Maughan is an ‘occupational hazard’ and ‘comes with the territory’. Nothing could be further from the truth. What Mr Zuma fails to appreciate is these violations constitute a steady erosion not just of her liberty and dignity, but will also likely discourage journalists from reporting on powerful individuals for fear of similar reprisals.

“Guaranteeing the freedom of the press and public confidence in judicial authority and the administration of justice is an ongoing process and requires constant vigilance.”

Ponnan said this was “the clearest of cases” that the private prosecution was part of the Stalingrad strategy announced by Zuma’s counsel more than 15 years ago.

“It was common cause in the main application that when Mr Zuma produced his prosecution docket it showed he had obtained no statements from any of the witnesses he said he would call.”

Regarding the NPA, Ponnan said the harm to be avoided was not only to Downer personally, but also to him in his capacity as the prosecutor in Zuma’s case as well as to the state and the administration of justice.

“The dismissal of Zuma’s application would also facilitate the expeditious commencement and management of his criminal trial.

“All told, it is hard to resist the conclusion that this appeal is itself an abuse of process.”

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