2022 was the year full of private prosecutions by former president Jacob Zuma against journalist Karyn Maughan, prosecutor advocate Billy Downer, and President Cyril Ramphosa.
Zuma accused Downer and Maughan of allegedly breaching the National Prosecuting Authority (NPA) Act for the alleged leak of his private medical records.
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The alleged information leak is related to a letter written by brigadier-general, Dr Mcebisi Mdutywa to the state when Zuma was imprisoned at Estcourt Correctional Centre in KwzUlu-Natal (KZN) for being in contempt of court after he refused to appear before the State Capture Commission.
In letter, Mdutywa indicated that Zuma had to be transported to Pretoria for urgent medical surgery after suffering a “traumatic injury” a year before.
The Citizen takes a look at what has happened so far. Here’s a recap of events:
Zuma lays complaint against Downer
In October 2021, Zuma laid a criminal complaint against Billy Downer before the Pietermaritzburg High Court was yet to rule on his special plea application to have removed the prosecutor from the arms deal corruption trial.
The Jacob Zuma foundation at the time said the former president decided to open the case against Downer after the Presidency failed to follow up on their complaint against him and the NPA.
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Zuma accused Downer of sanctioning the release of Mdutywa’s letter by the state’s counsel, advocate Andrew Breitenbach to Maughan ahead of Zuma’s corruption case.
Breitenbach sent Maughan, who wrote and published a story, copies of both the state and Zuma’s court papers the day before the case returned to court on 10 August.
Criminal complaint fails, but Zuma handed lifeline
Following a number of failed court applications, the NPA issued Zuma with a private prosecution certificate – known as a nolle prosequi certificate – in June this year.
The NPA had declined to prosecute Downer after consideration of the charges against him, citing lack of evidence for its decision.
Zuma summons Maughan and Downer
Zuma then decided to launch private prosecution proceedings against Downer and Maughan in September.
Both Downer and Maughan were summoned by Zuma to appear in the Pietermaritzburg High Court on 10 October.
Maughan and Downer fight back
On the morning of 10 October, Maughan filed an urgent application against Zuma, asking the court to scrap the private prosecution in its entirety.
In her court papers, she argued that Zuma did not obtain a nolle prosequi certificate against her unlike with Downer.
Maughan further argued that the prosecution was flagrant intimidation and harassment of a journalist.
Downer also filed an application asking for the prosecution to be scrapped.
Friends of the court
Their applications was expected to be heard on 8 and 9 December, with the parties agreeing to postpone the private prosecution to 2 February next year.
However, the court instead heard the applications of the South African National Editors’ Forum (Sanef), Campaign for Free Expression and Media Monitoring Africa who applied to be amicus curiae or “friend of the court” on 9 December.
Zuma opposed the applications of these organisations, with the judgement in the matter being reserved.
Downer and Maughan’s case challenging Zuma’s prosecution will be heard by the Pietermaritzburg High Court in March 2023.
READ MORE: Zuma’s arms deal corruption case: Lawyers given time to decide Judge Koen’s involvement
Meanwhile, the trial against Zuma and French arms manufacturer, Thales is expected to resume on 30 January.
Zuma tries to rope in Ramaphosa
On 15 December, the JZ Foundation announced that it had decided to pursue private prosecution against President Cyril Ramaphosa.
The foundation said Ramaphosa “has been charged in a private prosecution” as an “accessory after the fact in crimes committed” by Downer.
Ramaphosa was summoned to appear before the Johannesburg High Court on 19 January 2023.
Zuma’s charges were based on an accusation that Ramaphosa “failed to act” after the former president complained about the “improper conduct” of Downer and Breitenbach.
Presidency responds
The Presidency then issued a statement labelling Zuma’s move as an “abuse of private prosecution process” and argued that no nolle prosequi certificate was issued by the NPA.
“The summon served to the President is hopelessly sub-standard and demonstrate absolute disregard of the law,” Presidency spokesperson Vincent Magwenya said.
Zuma’s letter was referred to Department of Justice and Correctional Services Minister Ronald Lamola, who has also been requested to refer complaints against Downer and Breitenbach to the Legal Practice Council (LPC).
Ramaphosa then gave Zuma’s legal team until 17 December to withdraw the private prosecution against him, which was later extended to 21 December.
NPA intervenes
The NPA then stepped in and provided clarity on the matter, saying that no private prosecution certificate issued to Zuma.
“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,” the NPA said in a statement on 21 December.
Zuma foundation responds
But Zuma’s foundation accused the NPA of lying and attempting to rescue Ramaphosa.
“The foundation rejects with the contempt it deserves, the improper and unprofessional attempt by the NPA to play the judge in interpreting its own certificate which is the subject of a dispute between the private prosecutor and an accused person,” the foundation said.
The foundation said it is “mind boggling” how any member of the NPA who has had any sight of the docket can even begin to falsely state that Ramaphosa is not mentioned in the docket.
It has insisted that Ramaphosa must appear in court next year.
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