Durban - Former president Jacob Zuma plans to appeal the Pietermaritzburg High Court ruling which yesterday set aside his private prosecution of State advocate Billy Downer and journalist Karyn Maughan.
Zuma instituted the private prosecution for the alleged leak of documents about his medical condition ahead of an application that was brought for an adjournment of his criminal trial on the grounds of ill health.
Downer is the lead prosecutor in the arms deal corruption case in which Zuma is on trial in the Pietermaritzburg High Court.
In a ruling handed down yesterday, judges Thokozile Masipa, Gregory Kruger and Jacqui Henriques set the summonses in Zuma’s private prosecution cases aside. They granted interdicts, preventing Zuma from taking any further legal steps or private prosecutions against Downer and Maughan and ordered that Zuma pay all legal costs.
Mzwanele Manyi, spokesperson for the Jacob Zuma Foundation, said they were “appalled by the judgment”.
“From where the foundation sits, the law is clear on this matter. Section 41 of the NPA Act has been transgressed and we don’t understand why the court would make such a judgment.”
Manyi said Zuma would appeal the judgment.
A full Bench, led by Judge Kruger, yesterday rejected Zuma’s arguments that the applications for the private prosecutions to be set aside should have been brought in the criminal court hearing the private prosecution and that the State attorney did not have the requisite authority to represent Downer in these proceedings. The court also found that there was no nolle prosequi certificate issued in relation to Maughan and this was a prerequisite for the institution of a private prosecution.
The court also upheld previous findings that the doctor’s note in question was a public document once it was filed.
The court further found that Zuma had ulterior motives for bringing the private prosecution.
The court said it agreed with the submissions of the amici curiae (friends of the court) that “there exists a need for protection against SLAPP (strategic lawsuit against public participation) suits in criminal proceedings and that this is particularly evident where a private prosecutor is “stepping into the shoes of the state to punish crime”.
The court found that while private prosecution is used to facilitate access to court for victims of crime in circumstances where the State declines to prosecute an alleged offence, “they have acknowledged that private prosecutions may amount to an abuse of process in certain circumstances”.
Legal expert Mpumelelo Zikalala of Zikalala Attorneys said the court was sending out a strong message in how it ordered costs to be paid. “The court was saying this particular matter could have been resolved easier, there was no need for this application to take place and it awarded costs on the highest scale.”
Zikalala said Zuma’s lawyers in the appeal process would argue that the Supreme Court of Appeal (SCA) could come to a different conclusion on a point of law, or they could approach the Constitutional Court where they would argue jurisprudence to clarify the legal position on private prosecutions.
“The matter is ripe for an appeal, either to the SCA or even the Concourt so that we have much more clearly defined legal principles when it comes to private prosecution.”