In rejecting former president Jacob Zuma’s application for leave to appeal in litigation over his private prosecution of President Cyril Ramaphosa, the high court also blasted Zuma’s attorney and counsel, Dali Mpofu SC, for being unethical and attempting to mislead the court.
Zuma made an application for leave to appeal a July judgment that declared his private prosecution of Ramaphosa unlawful and unconstitutional and set it aside.
Zuma accused Ramaphosa of failing to take action against advocate Billy Downer, SC, following his complaint that Downer allegedly leaked his medical records to veteran journalist Karyn Maughan.
Ramaphosa argued that he referred Zuma's complaint about Downer to Justice Minister Ronald Lamola and advised him to refer the matter to the Legal Practice Council, noting that he had neither the power nor any intention to interfere with the independence of the National Prosecuting Authority.
While the High Court in Johannesburg said they did not believe that Zuma met the test for leave to appeal the matter, Judges Selby Baqwa, Lebogang Modiba and Mohammed Ismail did not mince their words in blasting Mpofu, who argued Zuma’s case.
The full written judgment, released to the public on the Southern African Legal Information Institute (Saflii) website, found that by omitting key correspondence with the Deputy Judge President Roland Sutherland, Mpofu had failed in his ethical duty to the court.
The judges found that Zuma's attorney and Mpofu failed to alert it to the fact that DJP Sutherland had not granted condonation to the former president to belatedly pay the security required to institute his private prosecution of Ramaphosa.
“If Mr [Ramaphosa's advocate Hamilton] Manaetje had not brought the existence of Sutherland DJPs response to this court, this court would not have been aware of it,” the judgment read.
It further read: “Apparently Mr Zuma’s attorney did not give Mr Mpofu instructions regarding Sutherland DJPs response to his request for an order evincing that the court in Part A condoned Mr Zuma’s late payment of security. Mr Mpofu was merely copied in the correspondence.
“Having been copied in the correspondence, Mr Mpofu also had an ethical duty to disclose Sutherland DJP’s response to this court when he addressed the Court in the application for leave to appeal notwithstanding his client’s persistence with the relevant ground of appeal,” the judgment read.
“He too failed in his duty towards this Court. In the result, Mr Zuma’s attorney and Mr Mpofu sought to mislead this Court by committing these omissions.”
Earlier in the week, the Presidency welcomed the decision.
“As we have always maintained from the onset, the private prosecution had no basis in law and constituted an abuse of private prosecution provisions,” Presidency spokesperson Vincent Magwenya said.