Former president Jacob Zuma had developed and demonstrated an “extraordinary animosity” towards journalist Karyn Maughan as a consequence of her reporting on his legal matters over 20 years, her advocate Steven Budlender argued on Monday.

And it was this hostility — and Zuma’s quest to silence her and stop her from doing her job — which was the motive behind his private prosecution of her.

Maughan and senior state advocate Billy Downer are both in the Pietermaritzburg high court on Monday, their lawyers arguing, in separate applications before a full bench of three judges, that the summons Zuma served on them in September last year should be quashed.

They also want interdicts stopping him from taking any further, similar action against them.

Zuma claims they contravened the NPA Act in that Downer, as an accessory, leaked a report disclosing his confidential medical condition to Maughan.

The report was submitted to judge Piet Koen, presiding over Zuma’s arms-deal related trial, in an application by Zuma for a postponement. Koen, who has subsequently recused himself from the trial, has already ruled that there was nothing confidential in the report, that it was a public document and no confidentiality had been claimed.

Budlender said Zuma’s hostility towards Maughan was evident from his affidavit in which he accused her of colluding and conspiring and being in partnership with state prosecutors to perpetuate a false narrative about him.

He said she was a hostile journalist and an anti-Zuma crusader. He labelled her a “racist bigot” because she was employing the same “Stalingrad” strategy she accused him of.

“This is not a legitimate dispassionate prosecution ... and this is not a genuine attempt to vindicate the rule of law. The true purpose, we submit, is to discredit her, silence her and prevent her from reporting on the progress of his criminal trial,” Budlender said.

Before a person can institute a private prosecution, they must first get a certificate of nolle prosequi from the director of public prosecutions.

Budlender pointed out that when the summons was first served, that certificate made no mention at all of Maughan, thus the summons was fatally defective.

A second certificate, presumably aimed at curing the defect, again did not mention Maughan by name, but only that a decision had been made not to prosecute “anyone” in relation to Zuma’s complaint.

Budlender said Maughan had never been a suspect in the case, so that equally did not apply to her. He said on this point alone, it was “the end of the case” against her.

He said Maughan had not received the document from Downer but from advocate Andrew Breitenbach, a member of Downer’s team.

“She is not subject to the NPA Act ... she was lumped in [to the private prosecution] because he hoped News24 would pull her off reporting on his case because she was tainted.”

He said the charges were “utterly baseless” and the prosecution was “hopeless”.

By the time Maughan had reported on the contents of the document, it had been filed three times with the court, once by Zuma’s own attorney and no-one, including Zuma’s legal team, claimed any confidentiality.

“We do not say that a journalist has an absolute defence against a private prosecution or is entitled to break the law. But what we do say, where a former president seeks to use a private prosecution to silence a journalist, that is an extraordinarily serious matter.”

Advocate Kate Hofmeyr, for the Helen Suzman Foundation, which was admitted as an amicus curiae in Downer’s case, said Zuma’s own documents in the private prosecution pointed to an “ulterior purpose”.

She said the bulk of his statement was a regurgitation of “political” motive arguments which he had made over the past 20 years and had nothing to do with the actual charges.

This was also evidenced by the witness list which included political figures, such as President Cyril Ramaphosa, and “historical” witnesses — again none of whom had anything to do with the alleged document “leak”.

“Regarding his most recent conduct, Mr Downer was given a copy of the docket in February. There are no statements by any of his proposed witnesses. In the absence of those, he cannot possibly call them.”

On the issue of prosecutorial independence, Hofmeyr said while the prosecution service was not above the law, she could not find a similar matter in which a criminal accused pursued a private prosecution against a prosecutor while his criminal trial was continuing.

“The conclusion can be that this is an unjust interference with prosecutorial independence. It is to inhibit and interfere with the criminal process which must now, after 20 years, begin to run.”

Later on Monday, submissions will be made by other amici.

Zuma’s legal team will respond to the argument on Wednesday.

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