Zuma suffers another court defeat as Sanef seeks to join Karyn Maughan, Billy Downer’s case

The Constitutional Court (ConCourt) has shut down former president Jacob Zuma’s bid to appeal the dismissal of his special plea application to remove prosecutor Billy Downer from his corruption trial.

The ConCourt delivered its judgment on Thursday, ruling that Zuma’s leave to appeal application had “no reasonable prospects of success”.

Appeal after appeal Zuma filed his application directly to the apex court in October this year, seeking to appeal Pietermaritzburg High Court Judge Piet Koen’s ruling, which dismissed the former president’s special plea application to remove Downer from his corruption trial.

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The former president’s move comes after the ConCourt, in September, ruled against forcing former Supreme Court of Appeal (SCA) president Mandisa Maya to reconsider his bid to remove Downer.

Maya had found there were no exceptional circumstances justifying her reconsidering the SCA’s previous dismissal of Zuma’s challenge to Koen’s ruling.

In his papers to the ConCourt, Zuma had argued he would be entitled to demand an acquittal of his arms deal trial – which was postponed to 30 January 2023 – had the apex court found that Downer lacked the title to prosecute him.

Private prosecution

The former president has since launched private prosecution proceedings against Downer and journalist Karyn Maughan.

He was given a nolle prosequi certificate – which allows someone with interest to pursue private prosecution – by the National Prosecuting Authority (NPA) in June, after the institution declined to prosecute Downer, citing lack of evidence on the matter.

Zuma has accused Downer and Maughan of allegedly breaching the NPA Act for the alleged leak of his private medical records.

READ MORE: How Jacob Zuma is funding his private prosecution against Downer and Maughan

The alleged information leak is related to a letter written by brigadier-general, Dr Mcebisi Mdutywa when Zuma was in prison.

Downer and Maughan have, however, filed applications challenging Zuma’s decision to pursue private prosecution.

The pair’s matter will be heard by the Pietermaritzburg High Court in March 2023.

Friends of the court

On Thursday, the South African National Editors’ Forum (Sanef) and Helen Suzman Foundation filed its applications to join Downer and Maughan’s case as amicus curiae or “friend of the court”, which is opposed by Zuma.

During proceedings, Sanef’s lawyer Advocate Max du Plessis argued Zuma’s private prosecution was an abuse of processes.

He also argued that the prosecution was flagrant intimidation of a journalist.

“Ms Maughan’s affidavit highlights detailed grounds for contending abuse of process,” he said.

But the judge seemed to not be convinced by this argument.

“I really can’t see how I can entertain submissions relating to the abuse of process if that particular provision of the NPA, according to me, doesn’t apply to Ms Maughan. The other issue is that there is no nolle prosequi [certificate] relating to Ms Maughan. Then why should I allow people who want to debate the issue of abuse of process,” Judge Sidwell Bongani Mngadi said.

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Mngadi later said: “You cannot over emphasise that Ms Maughan has raised the issue of abuse of process. If you read her papers, she says ‘there’s no case against me’ so that’s why she claiming there’s an abuse of process”.

In his response, Du Plessis further argued: “She says there’s an abuse of process for many reasons. Her papers are comprehensive [saying] that there’s no merit against her, [but] also the manner which [the prosecution] been employed [and] the fact that it’s trying to chill other journalists”.

Zuma’s counsel, Advocate Dali Mpofu argued that the application was biased on the basis that the friends of the court should not advance in their own agenda.

Mpofu also said there was a lack of jurisdiction for the high court to hear the matter and asked Mngadi to dismiss the application.

The judgment in the matter has been reserved.