Ramaphosa gives Zuma two more days to withdraw summons

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In an exchange of lawyer’s letters with his predecessor, President Cyril Ramaphosa has given Jacob Zuma a further two days to withdraw summons purporting to charge him in a private prosecution.

Ramaphosa stressed that the reprieve was given at Zuma’s request but said should he fail to withdraw the summons by Wednesday, his lawyers would approach the court without delay for an interdict halting the process and would claim punitive costs.

The letter from the state attorney on behalf of the president reads: “We make it clear that we hold instructions to approach the court for appropriate interdictory relief pending the setting aside of the summons, alternatively the summons and the certificate, should your client decline to withdraw the summons unconditionally.

“Given the time of year, the proceedings will be instituted as soon as possible. Counsel has been briefed to commence the work should it become necessary.”

The certificate in question is a nolle prosequi certificate Zuma has relied upon to add Ramaphosa as the third accused in the private prosecution he has instituted against Billy Downer, the prosecutor in his arms deal corruption trial, and journalist Karyn Maughan.

The document was issued on 21 November by the director of public prosecutions in KwaZulu-Natal, Elaine Zungi, and declares that she has declined to prosecute anybody in relation to an alleged breach of section 41 of the National Prosecuting Authority (NPA) Act.

Zuma alleges that the crime was committed when a letter from a military doctor submitted to the Pietermaritzburg high court in support of an application for a postponement in his arms deal corruption trial was released to Maughan.

But the letter became part of the public court record when his lawyers filed it without claiming confidentiality.

The private prosecution of Downer is widely seen as a desperate attempt to force further delay in the arms deal corruption trial and Ramaphosa has rejected the bid to embroil him as designed to derail his re-election as leader of the ruling party. 

Zuma served summons last Thursday, on the eve of the ANC’s elective conference.

The charge he makes is that Ramaphosa, as an accessory after the fact, defeated the ends of justice by failing to act after he complained that Downer and a lawyer representing the NPA, Andrew Breitenbach, had behaved improperly. 

He contends that the certificate Zungu issued gave him blanket cover to bring Ramaphosa, or whoever he wishes, before court in relation to the matter.

Ramaphosa has countered that the approach is irredeemably flawed in law, and the summons invalid.

His latest letter, dated 18 December, noted that the certificate concerned an alleged crime committed on 9 August 2021 — the date when the media was given access to the doctor’s letter. But the charge he is seeking to bring against the president relates to his alleged failure to act on Zuma’s complaint, which was raised at a later stage.

“It is practically impossible that the president could have committed the crime of accessory after the fact of defeating the ends of justice as at 9 August 2021, before your client made the request to the president to investigate officials of the NPA.”

Furthermore, the document related to an alleged breach of provisions of the NPA Act, not to defeating the ends of justice. 

“At best for your client, (and if the certificate was intended to cover any alleged crimes by the president), the certificate is void for vagueness, the director of public prosecutions acted irrationally in issuing it and merely gave in to the dictates of your client.”

Ramaphosa was also not afforded an opportunity to make written or oral submissions before it was issued.

“He is entitled to such a hearing but was deprived of it.”

For these reasons, the summons and the certificate would be declared unconstitutional and invalid, the state attorney wrote.

Zuma’s attorneys had in a letter sent to the state attorney on Saturday said that they “totally disagree with all the incorrect legal conclusions” made on behalf of the president, including that he was entitled in law to ignore the summons.

They said Zuma was amenable, for the sake of avoiding unnecessary litigation as to the validity of the summons, to withdraw it and re-issue it, to remedy the defects Ramaphosa noted. 

The president rejected this, saying the defects amounted to breach of the Criminal Procedure Act and were incurable.

“In this regard, your client simply misunderstands the law.”