President Cyril Ramaphosa has filed his heads of argument in the urgent interim interdict application in the High Court in Johannesburg. Former president Jacob Zuma, who is the first respondent in the application, also filed his heads of argument today.
Ramaphosa’s urgent interdict application will be heard by a full bench of the High Court in Johannesburg tomorrow.
Zuma instituted a private prosecution against Ramaphosa on the eve of the African National Congress (ANC) national elective conference, accusing the president of being an “accessory after the fact” in a criminal offence alleged against Advocate William Downer, who is accused of improperly sharing information in terms of the NPA Act.
Ramaphosa must prove his innocence
The former president has argued that Ramaphosa, “like all the accused and charged persons against whom there is a prima facie case and in respect of whom the NPA has issued a nolle prosequi certificate, must face his trial and exercise his right to prove his innocence. This must be done in the criminal courts not in the civil courts, let alone the urgent motion court.”
He also slammed Ramaphosa’s “grossly and deliberately and absurd exaggerated” claim that the reference to “any person” in the second certificate means that the Public Prosecutor may charge anyone living in South Africa.
“That view is based on wilful blindness and a deliberate distortion of the clear wording of the certificate together with the further correct explanation thereof by even the biased NPA. Firstly, the certificate does not just refer to ‘any person‘ but to ‘any person in connection with this matter’. Secondly the NPA itself ‘clarified‘ that ‘the nolle prosequi certificates apply to any persons who are specifically mentioned in the docket’. These qualifications make it clear that the certificates in actual fact can only apply to a maximum of 6 individuals who are named or clearly identified in the said police affidavit.”
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However, in December, the NPA said it issued to nolle presequi certificates “in direct relation to the docket (Pietermaritzburg CAS 309/10/21) which contained statements and affidavits relating to specific individuals for alleged contravention of Section 41 (6) read with Section 41 (7) of the NPA act”.
“The nolle certificates apply to any persons who are specifically mentioned in the docket. The President was not mentioned in any of the affidavits or statements, and thus the certificates were not issued in relation to him,” it said in a statement.
Selfish and egotistic purpose
Zuma further argued Ramaphosa’s scheduled court appearance on 19 January is within a few days of the hearing of the urgent application tomorrow, and this proves the sole purpose of Ramaphosa’s application is to avoid “what is likely” to be a brief first appearance and guaranteed postponement of the matter.
“It is customary and predictable to any court of law that the trial itself will certainly not likely even commence on that day, more especially in the light of the pending Part B application. The application is therefore fruitless and intended to serve a very narrow selfish and egotistic purpose fuelled by the arrogance of power and an air of relative superiority in comparison to other ‘ordinary’ citizens. This cannot be countenanced under a democracy worthy of that description, not even in Part B, let alone in the urgent court.”
As a result, the former president is asking the court to dismiss the urgent application, alternatively, strike the matter off the roll, and order Ramaphosa to pay the costs personally and on the attorney-and-client scale.
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Amicus application
Meanwhile, the BlackHouse Kollection NPC (BHK) has filed an application to be admitted as a friend of the court in Ramaphosa’s application for the interdict and setting aside of Zuma’s summons, certificate nolle prosequi and private prosecution.
BHK says it has filed its application as it believes Ramaphosa’s application raises constitutional questions that engage prosecutorial independence and the NPA’s duty to carry out its functions without fear or favour.
Among other issues, the BHK would like the court to consider:
- The facts of the case demonstrate that the requirement of a certificate nolle prosequi may serve as an impediment or unjustified limitation to the section 34 right of access to courts, especially when the national prosecuting authority – as in this case – appears to have nailed its colours to the mast of the accused person in the form and shape of the President.
- That the national prosecuting authority has failed to conduct itself without fear, favour or prejudice. “On the contrary, it appears to have taken the side of the President in the private prosecution.” This after its December statement.
The amicus application, according to the organisation, was served on the involved parties on 7 January 2023. None of them has opposed it.
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