The purpose of this short note is to summarise for the benefit of the general public, what the case was about in the Johannesburg High Court between President Cyril Ramaphosa and former President Jacob Zuma on Thursday 12 January 2023.
Because I represent an organisation that seeks to be admitted as friend of the court (amicus curiae), and I addressed the court briefly on that score, I shall not venture a comment on the merits of the argument of any party.
The object of this note is simply to state what the case is about without venturing into the merits or prospects of either party’s success, and then provide all the pleadings and written argument that is before court. I shall provide the judgment of the court, too, when it comes out. [PS Find the Judgment here –> President of the Republic of South Africa v Jacob Gedleyihlekisa Zuma 20230116
On Thursday 12 January 2023 extraordinary scenes played out in Court GC at the Johannesburg High Court. It was a day when a sitting President of South Africa faced off with his predecessor through lawyers in court.
President Ramaphosa, the sitting President of the ruling African National Congress (ANC) of Nelson Mandela [and also President of South Africa by dint of that position] had launched urgent court proceedings in which he seeks to be “excused from appearing before this Court on 19 January 2023 or on any other date pursuant to the certificate and/or the summons.”
The summons referred to had been issued by the sitting President’s predecessor, President Zuma, in December 2022. It summoned the President to appear in person at 09h30 on 19 January 2023 in Court GD of the Johannesburg High Court in connection with charges of (1) being an accessory after the fact to criminal offences allegedly committed by a senior prosecutor and a journalist, and (2) in the alternative, obstructing or attempting to obstruct the ends of justice.
The certificate referred to (known as a certificate nolle prosequi or “not to prosecute”) had been issued by a Director of Public Prosecutions (DPP) in November 2022. In it, the DPP certifies that she has seen all the statements and affidavits on which the charges in question are based, and that she declines to prosecute “any person in connection with this matter” at the instance of the State.
In South Africa, private citizens may embark on a private prosecution of another person if the national prosecuting authority (more accurately a DPP) issues a certificate nolle prosequi certifying
- that s/he has seen all statements and affidavits in the docket
- pertaining to a particular case
- and declines to prosecute any person in relation to that case
The private citizen must have a material interest in the prosecution and may pursue it either personally or through lawyers.
Ordinarily, the certificate not to prosecute specifies the particular persons by name whom the DPP has decided not to prosecute at the instance of the State. That certificate then serves as a licence for the victim or materially interested person to institute a private prosecution against the persons named in the certificate. On this occasion, the DPP did not mention in the certificate the specific persons whom she has decided not to prosecute at the instance of the State in relation to the case in question. She stated that she has decided not to prosecute “any person in connection with the matter”.
Whether the President is “any person in connection with this matter” by reason of his name appearing in the docket as a witness and one to whom a complaint was lodged by the former President in connection with the matter is perhaps an issue that the High Court may decide.
The certificate lapses after 3 months if no private prosecution is instituted.
In his application, and on 12 January 2023, the President also asked the court to stop his predecessor from pursuing a private prosecution against him, or to take any further steps giving effect to the certificate and the summons.
He also sought costs of his application to be paid by his predecessor, alternatively by his predecessor’s legal representatives, and any other respondent that opposes the application, on an attorney and own-client scale, such costs to include the costs of two counsel.
Attorney and client costs are on a higher scale than “party and party” scale of costs. They are usually reserved for litigants who are regarded by the court as litigating vexatiously or in bad faith or recklessly or generally in abuse of the processes of the court.
However, at the start of argument, the President’s lawyers withdrew the costs claim against lawyers and sought costs only against the former President and on the lower party and party scale.
The former President argued that the President’s application is not urgent and that the court has no jurisdiction to entertain it.
In short, the Full Court of 3 Judges of the High Court was asked to consider and decide the following issues:
- Is the President’s interdict application urgent?
- Does the court, sitting as Motion Court, have jurisdiction or power to decide issues that, according to former President Zuma, ought to be decided by the Criminal Court?
- Should the court, sitting as Motion Court, excuse the President from appearing in the Criminal Court on 19 January 2023 to answer the criminal charges preferred against him?
- Should the court, sitting as Motion Court, stop former President Zuma from pursuing a private prosecution against the President?
- Should the court, sitting as Motion Court, stop former President Zuma from taking any further steps giving effect to the certificate and the summons?
This is what is referred to as “Part A” of the application. The orders sought in Part A are usually intended to endure until the outcome of the application in “Part B”.
In the same notice of application, and in what is termed “Part B”, the President intimated that in due course he will seek orders in the following terms:
- an order declaring that the summons is unlawful, unconstitutional, invalid and of no force or effect, and is set aside.
- an order declaring that the certificate nolle prosequi is unlawful, unconstitutional, invalid and of no force and effect, and is set
- an order declaring that the private prosecution is unlawful, unconstitutional, invalid and of no force or effect, and is set aside.
- an order that the costs of this application are to be paid by the former President, alternatively his legal representatives, and any other respondent that opposes the application, on an attorney and own-client scale, such costs to include the costs of two counsel.
This last order as to costs, as already pointed out, was withdrawn at the commencement of argument. It now appears that costs will be sought on the lower party and party scale against the former President and not against his lawyers.
The main bases for the orders sought in “Part B” seem to be two-fold: the first is that the former President has failed to comply with the requirements of the statute that regulates the institution of private prosecution: the Criminal Procedure Act. The second is that the private prosecution has been instituted for an ulterior purpose.
Driven by legal and constitutional issues that arise in the application, BlackHouse Kollective Foundation filed an application to be admitted as a friend of the court (amicus curiae) in order to address four issues of law. These are:
- The requirement of a certificate nolle prosequi may serve as an impediment or unjustified limitation to the section 34 right of access to courts. A comparative study with private prosecution regimes in Canada, New Zealand and the United Kingdom seem to demonstrate that a certificate issued by the prosecuting authority is not necessary for successful private prosecution.
- The national prosecuting authority ought to conduct itself without fear, favour or prejudice, and politics and politicians ought to play no role in the functioning of the prosecuting authority as currently seems to be permitted by the NPA Act.
- The President’s seeking of costs on a punitive scale (attorney and client scale) against the legal representatives of his prosecutor is tantamount to what the Constitutional Court has recently termed a SLAPP suit (short for Strategic Litigation Against Public Participation). It may reasonably be seen, by reasonable observers, as intended to send a strong message against any legal practitioner who may dare consider representing anyone who should cross the President. This is a clear threat to our Constitutional Democracy, especially when engaged in by the President of the country.
- As regards the equality principle, it is worth noting that in Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others (CCT 52/21)  ZACC 18; 2021 (9) BCLR 992 (CC); 2021 (5) SA 327 (CC) (29 June 2021) the Constitutional Court sentenced the former President to a term of imprisonment for his failure to present himself at the Commission of Inquiry as directed by the Concourt, notwithstanding a pending court challenge by him to the lawfulness of the Inquiry. The Constitutional Court had directed that he appear at the Inquiry despite the review challenge that was then pending in the high court. By this application the President is challenging the lawfulness of his prosecution. That is why he seeks to interdict it. The same considerations should apply to him. A different decision by this Court will leave more than just an impression that different rules apply to the sitting President, thereby breaching the equality principle enshrined in section 9(1) of the Constitution.
The court took the view that “the scholarship which [the amicus] has marshalled” may on the face of it be valuable to the main debate in “Part B” and not in the interdict application in “Part A”. The court then invited the amicus to approach the Deputy Judge President for purposes of facilitating a “consent order” (an order by agreement of all the parties) for participation of the amicus in the main debate, perhaps even as an interested party.
As I pointed out at the beginning, I represent the amicus in those proceedings. I shall thus not venture into the merits of the various arguments by any party or by the amicus.
I shall say this, however: the President withdrew his prayer for punitive costs against the former President’s lawyers after the amicus had filed its application and heads of argument raising concern about that very issue and submitting that it may be seen as constituting harassment and abuse of court process. The argument is set out in the written submissions and court address that was handed up in court by the amicus.
The Full Court indicated that it will hand down judgment in Part A of the President’s application on Monday 16 January 2023 at 09h30.
Here are the Pleadings:
Read the President’s Notice of Motion here –>Notice of Motion
Read the President’s Founding Affidavit & Annexures here –>FA & annexures
Read President Zuma’s Answering Affidavit here –> Pres Zuma Answering Affidavit & annexures
Read the DPP’s Answering Affidavit here –> DPP Answering Affidavit
Read the President’s Replying Affidavit here –> Pres Ramaphosa Replying Affidavit
Read the Amicus BHK Application here –> Amicus BHK Application
Read Pres Ramaphosa’s Answering Affidavit to Amicus BHK Application here –> Pres Ramaphosa Answering Affidavit to Amicus Application
Here are the written arguments:
Pres Ramaphosa Argument –> Pres Ramaphosa Heads
Pres Zuma Argument –> Pres Zuma Argument Final
Amicus BHK Argument –> BHK Heads of Argument
Amicus BHK Note for Argument –> Oral Argument
The NPA and DPP did not file any written argument of which I am aware.
Oral argument can be accessed here –> Ramaphosa vs Zuma court case – YouTube