The South African political scene generously presents unprecedented moments, the latest being the presidential legal feud playing out between President Cyril Ramaphosa and his predecessor Jacob Zuma.
On Thursday (January 12), the Johannesburg High Court reserved judgement on Ramaphosa’s application to interdict Zuma’s private prosecution attempt. The court is set to deliver judgement on Monday (January 16).
Should the President fail to convince the court, he will be forced to appear before the Gauteng High Court next week. Zuma instituted private prosecution proceedings against his successor, accusing him of being an “accessory after the fact” when advocate Billy Downer SC and journalist Karyn Maughan allegedly leaked his confidential medical information during his arms deal trial.
Ramaphosa wants the court to declare the private prosecution against him unconstitutional, but legal expert Dr Llewelyn Curlewis believes Zuma wouldn’t stop in his bid to have the president in court should Ramaphosa’s interdict application succeed.
On 21 November 2022, KwaZulu-Natal Director of Public Prosecutions Adv. Elaine Zungu signed off a nolle prosequi certificate “which is exactly the requirement that Zuma needs to institute the prosecution against Billy Downer, Maughan as well as Cyril Ramaphosa,” said Curlewis.
However, it made no direct mention of Ramaphosa, creating space for ambiguity and confusion and leading to the presidential legal feud. While the president was advised not to appear in court, it is up to the Johannesburg High Court to determine the validity of the certificate in this case.
Curlewis suggested there was a possibility the court may rule in Zuma’s favour.
“The mere fact that the courts already allowed Zuma to have Billy Downer and Maughan before court, under exactly the same certificate, suggests that at least some courts felt that there’s merit in a possible private prosecution. If that is the correct interpretation, then Cyril Ramaphosa must face the music as well,” he said.
This could have far-reaching political implications due to the ANC’s internal step-aside rule, which could force him to step aside as party leader and President of the Republic. However, there was also a chance that Ramaphosa’s interdict application might be successful.
“On the other hand, if Ramaphosa is correct, by all means, there is no valid subpoena to have him before court in which event he is within his rights not to appear on the 19th of January in the Gauteng High Court.”
Playing for time
Curlewis explained that while Zuma was within his right to seek a private prosecution against Ramaphosa, the presidential legal feud was simply another attempt at delaying his own prosecution in another case.
“In terms of our Criminal Procedure Act, it happens from time to time where the State declines to prosecute a person because they don’t seem to have so-called prima facie evidence to institute a prosecution, in which event it is open for the complainant to decide to take the matter further on his own and that is what we call a private prosecution,” he said.
He said this would have to be done with a nolle prosequi certificate confirming that the NPA declined to pursue the matter. It would also have to be done at the complainant’s own cost.
“Zuma has played for time. He’s been using the so-called Stalingrad tactic all along in his own prosecution. That’s why we have not ensured a finalisation of his own prosecution after almost a decade,” he continued.
Curlewis further questioned Zuma’s motives for attempting to have Ramaphosa stand before court, saying the timing was “suspicious”. The Jacob Zuma Foundation had announced criminal charges on the eve of the ANC’s 55th National Elective Conference at Nasrec in December 2022, where Ramaphosa sought a second term as party leader.
He added that it was unlikely Zuma would back down should his attempt fail, as it was only a matter of time before Ramaphosa was forced to appear before the court.
“What will happen is Ramaphosa will be arraigned before court some time. If not on this matter by Zuma, be sure it will then follow on the Phala Phala allegations against him. The mere fact that Parliament is not willing to proceed [with impeachment] does not mean that any other interested party cannot exactly do the same as Zuma and ask for a nolle prosequi certificate against Ramaphosa and have their day in court,” he said.
He also said Ramaphosa himself was “playing for time” and that “the inevitable will follow in due course.”