The Johannesburg high court on Monday granted President Cyril Ramaphosa an interdict to halt his private prosecution by former president Jacob Zuma, pending the hearing of his challenge to the validity of the summons served on him by his predecessor last month.
It put paid to Zuma’s insistence that Ramaphosa must appear in the Pietermaritzburg high court on Thursday, 19 January, as per the summons delivered to him on the eve of the ANC’s elective conference.
Gauteng deputy judge president Roland Sutherland said Ramaphosa had established both that it was urgent that the court grant him an interdict, and that irreparable harm would follow if it did not.
The president raised several grounds of urgency, the principal argument being that to submit to an unlawful summons would be a violation of his right to freedom. The court said this ground alone was sufficient to establish urgency.
“It is axiomatic that if the aim is having to appear, even for a formal postponement, the matter before this court is urgent,” Sutherland said, as he delivered the ruling by a full bench of the court.
Dali Mpofu SC, for Zuma, had argued that there was no material harm in having to appear in a criminal court later this week.
“This contention misses the point. Harm lies not in the temporary inconvenience of physically attending a hearing, if only for a formal postponement, the critical harm concerns a fundamentally, constitutionally guaranteed right to personal freedom,” Sutherland said.
“That value which is foundational to our constitutional order may never be treated lightly. Our history instructs us that it is a matter of pride that South Africans value and assert our freedom above all other considerations, in the face of whatever adversity we chance to meet. Our law must guard that right and its exercise unreservedly.”
Zuma is attempting to charge Ramaphosa as an accessory after the fact to an alleged violation of the National Prosecuting Authority (NPA) Act. He has initiated a private prosecution against state prosecutor Billy Downer and journalist Karyn Maughan, charging that they breached section 7 of the Act when a medical report submitted in support of an application in his arms deal corruption trial was released to the media and published.
Ramaphosa has countered that the bid to charge him is an abuse of process, informed by the ulterior purpose of robbing him of a second term as leader of the ruling party.
He has argued that Zuma lacked standing to pursue the prosecution, because the nolle prosequi certificate which he obtained from the NPA in November and on which he relies as licence to institute it did not refer to him or any crime committed by him.
The court dismissed Zuma’s argument that the urgency in the matter was self-created as “specious, to say the least” as the president initiated an exchange of legal letters as the summons was served. And it said Zuma suffered no harm if the private prosecution were delayed in order to debate the controversies surrounding it.
“The trial of the alleged principal offenders is yet to begin,” Sutherland said in reference to the case against Downer and Maughan. “Their conviction is a necessary condition for criminal liability by the applicant.”
He ordered that a case management meeting be arranged promptly to set down a hearing date for the second part of the application, in which the president is asking the court to set aside the private prosecution as unlawful and unconstitutional.
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