The face-off between President Cyril Ramaphosa and former president Jacob Zuma over Zuma’s private prosecution bid against Ramaphosa is headed for court this week, with the two accusing each other of abusing court process.
Ramaphosa wants the Johannesburg high court to set aside the prosecution as unconstitutional and unlawful. He has asked for an interdict to prevent any “further steps” in pursuing the prosecution and to excuse his appearance in the criminal court on January 19 as per Zuma’s summons.
Ramaphosa has accused Zuma of an ulterior purpose in prosecuting him, saying the former president wanted to scupper his re-election as president of the ANC with a spurious charge that has no chance of succeeding. Zuma has accused Ramaphosa of seeking special treatment from the courts because he is the president.
“It cannot be correct that the applicant must always get preferential treatment from the authorities, the police, the NPA [National Prosecuting Authority], the media, parliament and even the 'independent' structures of the ANC. The courts must certainly not join this list of shame, injustice and partisanship,” he said.
Zuma’s 118-page affidavit was filed in court on Friday night. In it, he claims the case will put the justice system to the test: when he sought to quash his own prosecution because he thought it was politically motivated, he was sent packing.
“The applicant’s attack on his private prosecution is no different from that of mine more than a decade ago. The only difference is that he is the president ... and seems to be enjoying the support of mainstream media that I do not,” he said.
Ramaphosa is still to file his replying affidavit in which he is likely to fiercely dispute Zuma’s assertion there are no differences between the two prosecutions.
Zuma’s criminal charge is that Ramaphosa is an “accessory after the fact” in relation to charges he is pursuing against prosecutor Billy Downer and journalist Karyn Maughan.
In a separate private prosecution, he has charged Downer and Maughan with contravening the NPA Act over the disclosure of a medical report later filed in court during Zuma’s criminal trial for corruption — without the written consent of the NPA’s national director.
Ramaphosa’s alleged crime is that when Zuma’s lawyers wrote to the president to complain about Downer and demanded an investigation, Ramaphosa failed to act.
In his affidavit to court, Ramaphosa said Zuma’s “purported” prosecution — launched the day before the ANC’s elective conference — was unlawful on a number of grounds, one of which was that it was brought with an ulterior purpose.
Ramaphosa said it was intended to prevent him from standing for president of the ANC because of the party’s step-aside policy, which says those indicted on serious charges should step aside from their positions.
I would also have to step aside from the elected position on account of the pending criminal prosecution
— President Cyril Ramaphosa
Now that he has been elected, if the step aside policy applied to him, “I would also have to step aside from the elected position on account of the pending criminal prosecution. The summonses were also issued to attempt to achieve this purpose ... This is a blatant abuse of process.”
Zuma repeatedly denies that his prosecution had anything to do with the ANC conference. The timing was “purely fortuitous and coincidental”. But in any event, he says, the courts, including the Constitutional Court, have pronounced that the motive for a prosecution is not relevant in determining whether a prosecution should go ahead.
He refers to the Supreme Court of Appeal judgment in his own case in which his claim of a political conspiracy in his prosecution was rejected; and where it was held that a prosecution would only be wrongful if, in addition to an improper purpose, there were no reasonable grounds to prosecute.
Whether there were reasonable grounds, said the judgment, could “only be determined once criminal proceedings have been conducted”.
Ramaphosa’s case is that the prosecution has no reasonable prospects of success. He says he had no legal duty under the NPA Act and the letter sent to him by Zuma’s lawyers was phrased as a request to investigate “a systemic failure of professional ethics and good standards in the NPA” — not to investigate a crime.
Zuma was aware that the president does not investigate crimes “and it would have been improper to report a crime to the president”.
Ramaphosa said that while he took the letter seriously, he understood Zuma’s issue to be “about good governance and professional ethics”. It could not be said “on any reasonable grounds or understanding that I intentionally conspired to assist anyone to evade criminal liability,” he says.
Zuma denies that what was reported to Ramaphosa was not a criminal act. “It clearly was. Any inquiry would have established that fact,” he says. In any event, this would be better resolved in the criminal court, he adds.
Ramaphosa’s application was initially scheduled to be heard on Tuesday, but is now set down for Thursday.
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