Daily Maverick
Dailymaverick logo

South Africa

South Africa, Maverick News

Zuma’s attempt to privately prosecute Ramaphosa is nonsense, say experts

Zuma’s attempt to privately prosecute Ramaphosa is nonsense, say experts
Rebecca Davis
By Rebecca Davis
17 Dec 2022
Facebook
4
The ANC’s RET faction has delivered what it seems to consider its killer blow: a notification from former president Jacob Zuma that he will privately prosecute President Cyril Ramaphosa. The response from legal experts? This is ludicrously invalid.

There was jubilation from supporters of the ANC’s Radical Economic Transformation (RET) faction on social media on Thursday, 15 December, when the Jacob G Zuma Foundation posted a statement headlined: “President Ramaphosa criminally charged”.

The statement has been retweeted more than 3,500 times to date. The reason for the RET excitement? If Ramaphosa has indeed been criminally charged, then, according to the ANC’s new electoral rules, he is ineligible to stand for election at the ANC’s electoral conference under way at Nasrec.

There’s just one problem — legal experts say the whole thing is sheer nonsense.

The private prosecution attempt, Act One


This latest strategy by the increasingly desperate RET faction bears all the hallmarks of plotting by suspended ANC Secretary-General Ace Magashule.

It was, after all, Magashule who attempted to suspend Ramaphosa as ANC president in a loony midnight letter in May 2021, which was dismissed as having zero legal standing. This latest move of trying to bring criminal charges against Ramaphosa is straight from the same playbook.

Zuma’s foundation announced on Thursday that Ramaphosa “has been charged in a private prosecution with the criminal offence of being accessory after the fact in the crimes committed by among others Adv Downer, namely, breaching the provisions of the NPA Act”.

Confused? You aren’t alone.

Briefly, the background to this is that Zuma is already seeking to privately prosecute advocate Billy Downer, who is leading the State prosecution of Zuma on corruption charges related to the Arms Deal, and News24 journalist Karyn Maughan.

In that case, which is almost certain to be dismissed as soon as it is heard by a court, Zuma has charged that Maughan and Downer colluded to publish classified information on his medical status.

Zuma’s new attempt to privately prosecute Ramaphosa is also based on Downer’s corruption prosecution of the former president. In this instance, Zuma claims that he reported alleged prosecutorial misconduct on Downer’s part to Ramaphosa, but Ramaphosa failed to act.

Hence the idea that Ramaphosa is an “accessory after the fact” to Downer’s alleged misdeeds.

Read more in Daily Maverick: “ANC electoral committee rejects RET’s EleXions Agency conflict of interest charge”

The Presidency hit back on Friday, 16 December, by releasing a statement terming the charges “completely spurious and unfounded”.

On the claims that Ramaphosa failed to act when Zuma alerted him of potential improper conduct by State prosecutors, presidential spokesperson Vincent Magwenya said Ramaphosa immediately referred the matter to Justice Minister Ronald Lamola and asked him to notify the Legal Practice Council.

Moreover, according to the Presidency, Ramaphosa notified Zuma at the time that he had done so.

More significantly, the Presidency pointed out that Zuma had failed to follow the proper protocols when it came to private prosecutions in South Africa.

“In accordance with the Criminal Procedure Act, a private prosecution can only be instituted after the individual prosecuting has obtained a certificate of non-prosecution [a nolle prosequi certificate],” Magwenya wrote.

“The certificate serves as legal confirmation that the National Prosecuting Authority (‘NPA’) will not proceed with the prosecution following its consideration of the charges.”

The private prosecution attempt, Act Two


The Jacob G Zuma Foundation was in no way cowed by the Presidency’s response — or it is simply seeking to drag out the issue for as long as possible to create confusion around Ramaphosa’s eligibility at the electoral conference.

On Friday, the foundation issued another statement, this one more animated in its tone: “The Foundation notes sadly that President Ramaphosa and his team have not yet grasped the legal import and implications of the charges which he faces,” it began, and continued in this vein for a page-and-a-half.

It concluded by delivering the supposed coup de grace: the publication of a nolle prosequi certificate issued to Zuma by the KwaZulu-Natal director of public prosecutions, Elaine Zungu, on 21 November.

Visit Daily Maverick’s home page for more news, analysis and investigations

Clearly realising that it needed to start fighting legal fire with legal fire, the Presidency responded with a five-page letter to Zuma’s lawyers from the State Attorney on Saturday, 17 December.

It pointed out that the nolle prosequi certificate published by Zuma does not name Ramaphosa and has “nothing to do with the President”.

As such, the most “basic requirement for private prosecution” has not been met. The state attorneys also write that it is clear that the would-be private prosecutor has an ulterior motive.

“The purported summons [was] served on the President a day before the 55th National Conference of the African National Congress [was] due to commence,” the letter states. “It is common knowledge that the President will stand for re-election as presidential candidate. It appears that the purported summons [was] served to halt this candidature. This is an abuse of process.”

The letter concludes by demanding that the “invalid summons” be withdrawn by Monday, 19 December, failing which Ramaphosa intends to “seek punitive costs”.

The Jacob G Zuma Foundation’s response has been to double down.

In a tweet on Saturday afternoon, clearly after receiving the legal letter, the foundation posted: “Ramaphosa is facing criminal charges in a Court of Law. 19 January 2023 at 09h30, he is expected to appear in person at the Johannesburg High Court.”


Fact-check verdict: JZ is in La-La Land


Legal experts are adamant that Zuma’s legal gambit is utter hogwash.

Among the chorus of outraged legal voices was Johannesburg advocate Jonathan Berger, who tweeted: “The lawyer(s) that drafted this nonsense should not be allowed to practice law”.



Constitutional law professor Richard Calland, meanwhile, wrote: “The fundamental point is that the so-called charges in the private prosecution disclose no criminal offence and so the summons is invalid. It should be struck down as soon as the President can get before the court.”

Calland added: “Clearly, the [ANC’s] step-aside rule cannot apply to private prosecutions because, as this one shows so clearly, there is no prior consideration of the evidence, and so [it] is open to partisan political abuse.” DM

Categories:

Tags: