President of the RSA v Jacob Gedleyihlekisa Zuma, DPP: KZN, NPA, Registrar: Jhb High Court (Cases ZAGPJHC 27676/2022)

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

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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
    aside.
  • 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) [2021] 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

By |2023-01-16T12:50:28+02:00Jan 14th, 2023|Cases of Interest, South Africa|Comments Off on President of the RSA v Jacob Gedleyihlekisa Zuma, DPP: KZN, NPA, Registrar: Jhb High Court (Cases ZAGPJHC 27676/2022)

Public Protector v Speaker of National Assembly & Others; Democracy in Action v Speaker of National Assembly & Others (Cases WCHC 2107/2020 & 1731/2020)

From Monday 7 June 2021 to Friday 11 June 2021 the Full Bench of the Western Cape High Court (that is, a Court comprising three judges) heard argument in two applications, one by the Public Protector and another by an organisation called Democracy In Action.

This website was conceived in order to inform the public on law-related matters in a way that leaves room for the reader to draw his or her own conclusions. When an opinion is expressed, that is made clear.

This is not an opinion. The idea is to inform the reader of the purpose of the applications and then arm the reader with all the written arguments placed before Court by all the various Counsel. What the reader does with these, or makes of them, is the reader’s choice.

The Public Protector has asked the Court to

  • declare unconstitutional the rules devised by the National Assembly for the removal of the Public Protector, the Auditor-General and members of Commissions established in terms of Chapter 9 of the Constitution for the strengthening of South Africa’s constitutional democracy
  • declare, in the alternative, that the rules do not apply retrospectively (in other words, that the rules do not apply to conduct that occurred before the date of their adoption, 3 December 2019)
  • review and set aside the rules
  • review and set aside the National Assembly’s adoption of the rules
  • review and set aside the Speaker’s decision to approve the motion for the removal from office of the Public Protector

Read the Public Protector’s Heads of Argument here –> HoA – Public Protector

Democracy In Action has asked the Court to

  • declare that the National Assembly has failed to pass legislation in order to give effect to a power conferred on it by the Constitution
  • declare that 5 Chapter 9-related pieces of legislation, including the Public Protector Act, are unconstitutional for failing to make provision for the removal of the Public Protector, the Auditor-General and members of Commissions established in terms of Chapter 9 of the Constitution for the strengthening of South Africa’s constitutional democracy
  • declare that the rules adopted by the National Assembly are unconstitutional
  • declare that adoption of the rules by the National Assembly without inviting the input of the affected parties is unlawful and unconstitutional
  • direct Parliament to amend the 5 Chapter 9-related pieces of legislation within 2 years so as to provide for appropriate circumstances in which the Public Protector, the Auditor-General and members of Commissions established in terms of Chapter 9  may be removed for office

Read the Democracy In Action’s Written Argument here –> DEMOCRACY IN ACTION HEADS OF ARGUMENT – 28 May 2021 Clean

Read Democracy In Action’s Oral Argument subsequently submitted in writing here –> Court Address – 10 June 2021

Read Democracy In Action’s Reply to Respondents’ Arguments here –> IN REPLY – Democracy in Action

Both applications are opposed by the same parties. The written argument can be accessed here:

Speaker’s Heads in Public Protector application –> HoA – Speaker in PP Application

Speaker’s Supplementary Heads in Public Protector application –> Part B Mkhwebane v Speaker – Speaker Suppl Heads – Final

Speaker’s Oral Argument Note –> PP v Speaker_Part B_Oral argument

Speaker’s Heads in Democracy In Action application –> Heads of Argument – Speaker

Speaker’s Oral Argument Note in Democracy In Action application –> DIA v Speaker_Oral argument

DA Heads of Argument in Public Protector application –> HoA – DA

DA Heads of Argument in Democracy In Action application –> DA Heads of Argument

DA Oral Argument in Democracy In Action application –> DA Note for DIA argument FINAL

DA Oral Argument in Public Protector application –> DA Note for PP argument

ATM Heads of Argument in Public Protector application –> ATM- HoA – ATM

Min of Justice Heads in Democracy In Action application –> Heads of Argument – Min of Justice

Min of Justice Oral Argument in Democracy In Action application –> Oral Argument – Minister of Justice FINAL

President Heads of Argument in Democracy In Action application –> HOA – President of SA

CASAC & Corruption Watch Oral Argument in Democracy In Action –> ARGUMENT NOTE ON BEHALF OF THE AMICI 11 June 2021

Final Report of the Panel on the Prima Facie case for Removal of the Public Protector –> FINAL REPORT OF THE INDEPENDENT PANEL EST i.t.o. NA RULE 129U AND Sect. 194 OF CONSTITUTION

By |2021-06-14T17:58:58+02:00Jun 14th, 2021|Cases of Interest, South Africa|Comments Off on Public Protector v Speaker of National Assembly & Others; Democracy in Action v Speaker of National Assembly & Others (Cases WCHC 2107/2020 & 1731/2020)
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