Zuma loses again in battle against Downer and Maughan

Former president Jacob Zuma suffered yet another court defeat with a ruling on Thursday that prosecutor advocate Billy Downer and journalist Karyn Maughan do not have to appear in court on Friday in his private prosecution matter.

Downer and Maughan approached the full bench of the Pietermaritzburg high court asking that its previous ruling, setting aside the private prosecution, be immediately enforceable, in spite of Zuma lodging a notice of intention to apply for leave to appeal against it.

Ordinarily, an application for leave to appeal suspends the judgment. But Downer and Maughan argued there were exceptional circumstances to deviate from this.

Judges Gregory Kruger, Jacqui Henriques and Thokozile Masipa agreed.

However, in argument in the matter earlier this week, lawyers for Zuma indicated if the judges granted their application, Zuma would immediately apply for leave to appeal against that — which meant Downer and Maughan would have to appear in court anyway.

Advocate Steven Budlender, for Maughan, described this as “contemptuous”.

The judges, in their ruling, reiterated this, saying it was “pre-empting the judgment and the reasoning of the court”.

It was not clear on Thursday what Zuma’s intentions are in this regard.

Spokesperson for the JG Zuma Foundation Mzwanele Manyi, in a statement on Wednesday, said Zuma had recently returned from his “medically-related trip” to Russia.

He said his return was necessitated by the private prosecution matter and was compulsory, as the private prosecutor, for him to attend court.

Zuma, in his private prosecution, claims Downer — the lead prosecutor in his arms deal-related corruption trial — contravened provisions of the National Prosecuting Act when he “leaked” a document to Maughan containing his private medical information.

The document was attached by both the state and Zuma’s lawyers to an application by Zuma for a postponement of his trial because he was in hospital.

Downer and Maughan have subsequently appeared twice in the Pietermaritzburg high court. On the last occasion the matter was postponed until August 4.

They both launched applications challenging Zuma’s right to prosecute them with the ruling in their favour handed down by the full bench in June.

The judges described the private prosecution as an abuse of process, saying Zuma had initiated it for ulterior purposes with the aim of discrediting Downer and intimidating and harassing Maughan.

They set aside the summonses and interdicted Zuma from initiating any further private prosecutions against Downer and Maughan on the same charges.

In Thursday morning’s ruling, the judges also ordered Zuma to pay the costs of the application on a punitive scale.

They said subsequent to the delivery of the initial judgment in June, on the same day the JG Zuma Foundation had published a statement on Twitter indicating Zuma would appeal.

Maughan’s lawyers had written to Zuma’s lawyers, asking for an undertaking she not be required to attend the criminal court on August 4.

Zuma’s lawyers did not give the undertaking, which then resulted in the urgent application before them. They said in proving exceptional circumstances, Downer had contended a suspension of the main court orders granted to prevent a glaring abuse of process would be negated.

Downer had said the private prosecution was instituted in bad faith, with ulterior purpose. If such conduct was allowed to continue, despite the main judgment having found it to be an abuse, it would be an invitation to other well-sourced accused people to engage in the same conduct.

“In the main judgment we noted that the private prosecution was instituted for an improper purpose and was used as the basis for Zuma to seek the removal of Downer as a prosecutor in his criminal trial.

“The findings of this court in the main judgment were aimed at bringing to an end the abuse inherent in the private prosecution which abuse would continue if the execution order sought is not granted,” the judges said.

Maughan, they said, had contended a continued violation of her freedom of expression.

Zuma, they said, had countered that he was not being treated equally before the law and whenever he challenged the constitutionality of his prosecution, it was labelled as “Stalingrad”. They said this argument was flawed.

“As regards 'Stalingrad', this was said to be his defence strategy by his former legal representative. He has never disavowed this, despite being afforded several opportunities.

“We have alluded to the fact that the private prosecution served as a precursor to an application for the recusal of Downer as the prosecutor in the [arms deal-related] trial. This, in our view, clearly evidences the Stalingrad strategy.”

They said Downer would suffer irreparable harm if he had to appear in court for the private prosecution, despite the court having found it to be unlawful.

There was also potential harm to state advocate Andrew Breitenbach, a member of the prosecution team, who had been implicated in the “unfounded charges of disclosure of confidential information” and named as a witness in the private prosecution.

They said Maughan had also raised issues relating to her personal safety — that every time she appeared in court as a litigant, the attacks on her on social media intensified.

The judges said both Downer and Maughan had shown exceptional circumstances. Zuma, they said, would not suffer any irreparable harm.

Regarding the punitive cost order, they said a timely and reasonable undertaking had been requested, and there could be no prejudice to Zuma had he consented to such a request. “It would have obviated the need for these applications and further legal expenses being incurred.”

The further application for Downer’s recusal as lead prosecutor in the criminal trial has been set down to be heard on August 15 and 16 before the trial judge.

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