Second appeal blow to Zuma’s private prosecution attempts, as judges say Mpofu tried to ‘mislead’ court

On Tuesday, 12 September, a full Bench of the Gauteng Division of the High Court in Johannesburg unanimously dismissed an application for leave to appeal brought by former president Jacob Zuma as he continues to try to privately prosecute President Cyril Ramaphosa.

This was the second defeat in two days as the Pietermaritzburg High Court made a similar ruling in his cases against prosecutor Billy Downer and journalist Karyn Maughan on Monday. Judges Lebogang Modiba, Selby Baqwa and Ismail Mohamed dismissed Zuma’s latest application with costs.

The ruling, which was delivered electronically, was as much an assessment of Zuma’s conduct in the case as that of his legal team, including advocate Dali Mpofu. The court dealt briefly with the appeal, saying that it considered the “elaborate grounds for appeal as set out in his application”.

Read more in Daily Maverick: ‘Abuse of process’ – high court delivers fresh blow to Zuma, swats aside bid to prosecute Ramaphosa

“We are not persuaded that Mr Zuma meets the test for leave to appeal on any of the two statutory provisions on which he relies. We therefore stand by the reasons and orders set out in the judgment,” the judges said. 

This pronouncement occupied just the first page of the judgment. The remaining six pages were spent dealing with an issue which the court anticipated would be argued before the Supreme Court of Appeal, where Zuma has already indicated he plans to appeal in both the Ramaphosa and Downer-Maughan cases. 

Read more in Daily Maverick: SLAPP down — Jacob Zuma fails in attempted private prosecution of Billy Downer and Karyn Maughan

During the latest hearing in the case, Zuma had argued that the high court “misdirected itself and flouted s34 of the Constitution by failing to deal with Mr Zuma’s defence in respect of failure to pay a security deposit as required in terms of s9 of the Criminal Procedure Act (CPA).”

The CPA requires anyone seeking to begin a private prosecution to pay a deposit, to ensure that the prosecution is not frivolous. At the time of charging Ramaphosa in the private prosecution, Zuma had not paid the deposit, but his lawyers told the court that Deputy Judge President Roland Sutherland had condoned it when he heard the first part of the case on an urgent basis.

“After reserving judgment in this application, Judge Modiba presiding, issued a directive calling on Mr Zuma’s current attorney of record to place the correspondence exchanged with Sutherland DJP’s office regarding whether the Court in Part A granted Mr Zuma security for late payment of the security deposit, file an affidavit placing the correspondence before this court and explain among other issues, why there was persistence with the contention that this Court ignored the order for condonation granted by Court A notwithstanding Sutherland DJP’s response that no such order was granted,” the court said.

Ramaphosa’s legal team also submitted information about the correspondence with Sutherland which revealed what really happened. 

The court noted that Zuma changed his story regarding the deposit, saying he “initially vacillated between saying that security has been paid and that it will be paid”. Zuma then “contradicted his purported exemption from paying security by paying it”.

In his affidavit, Zuma told the court he had taken all the necessary steps to make payment by making inquiries with the court registrar, but had not actually paid the deposit. 

During oral argument in the case, Zuma’s lawyers repeatedly said he had complied with Section 9 of the CPA and that Judge Sutherland had earlier condoned the late payment. This was not the case.

“Notwithstanding his client’s persistence with the relevant ground of appeal, Mr Zuma’s current attorney of record had an ethical duty to disclose to this Court that Sutherland DJP did not acquiesce his request to modify the order granted by the Court in Part A to reflect that it granted condonation because it had not granted it. By not making such disclosure, Mr Zuma’s current attorney of record failed in that duty,” the court said.

The court found that Mpofu, who argued the condonation point, was aware that Sutherland had not agreed to this.

“Having been copied in the correspondence, Mr Mpofu also had an ethical duty to disclose Sutherland DJP’s response to this Court when he addressed the Court in the application for leave to appeal notwithstanding his client’s persistence with the relevant ground of appeal. He too failed in his duty towards this Court. In the result, Mr Zuma’s attorney and Mr Mpofu sought to mislead this Court by committing these omissions. If Mr Manaetje (representing Ramaphosa) had not brought the existence of Sutherland DJP’s response to this Court, this Court would not have been aware of it,” the judges said.

The court added that the fact that Zuma’s current lawyer, Mongezi Ntanga, began working on the case only after the initial meetings with Sutherland took place was “irrelevant”. “He committed the omissions referenced above.” 

The court did not sanction the Zuma legal team when dismissing the application.

The Presidency has welcomed the decision.

“As we have always maintained from the onset, the private prosecution had no basis in law and constituted an abuse of private prosecution provisions,” Presidency spokesperson Vincent Magwenya said. DM