Durban — Senior advocate Tembeka Ngcukaitobi has warned that if the Pietermaritzburg High Court allows former president Jacob Zuma to continue with his private prosecution of journalist Karyn Maughan it will have a negative impact on media freedom.
Ngcukaitobi, who is representing Maughan in a private prosecution instituted by Zuma against her and arms deal prosecutor advocate Billy Downer, was addressing Judge Nkosinathi Chili on Wednesday in an application to enforce the same court’s ruling and the Supreme Court of Appeal (SCA) that the case should be struck off the roll.
“Mr Zuma fails to appreciate that these violations constitute a steady erosion, not just of liberty and dignity, but will also discourage other journalists from reporting on powerful individuals for fear of similar reprisals,” said Ngcukaitobi.
Ngcukaitobi and Downer’s lawyer, advocate Andrew Breitenbach, wanted the court to enforce the SCA rulings against the private prosecution while Zuma’s advocate, Dali Mpofu, wanted the prosecution to continue.
Chili will deliver his ruling in April on whether Maughan and Downer are to continue facing Zuma’s private trial.
Ngcukaitobi said the private prosecution would subject Maughan to abuse “at the hands of Mr Zuma”. He said Maughan had already suffered the indignity compounded by personal insults on social media, which he accused Zuma of being part of.
After the High Court had ruled that the case should be removed from the roll, Zuma approached the SCA in the hope that it would rule in his favour.
Ngcukaitobi reminded Chili that the SCA had found Zuma’s action against Maughan, in particular, to be unlawful and abusive of private prosecution.
“It (SCA) has made it clear that if it (High Court) does not enforce the order of the full court (High Court), it would play into the hands of Mr Zuma who is abusing the courts and abusing private prosecution,” said Ngcukaitobi.
He said if Maughan were to sit in a criminal dock facing the private prosecution, this would have “far-reaching impact” on her. “If you direct Ms Maughan to sit in a criminal dock, the SCA has told you you are inhibiting their (Maughan and Downer’s) dignity and eroding their personal liberty.”
Mpofu argued that the High Court and SCA ruling should be suspended as Zuma had only filed an application of leave to appeal both rulings at the Constitutional Court.
“My Lord, you cannot rely on the very same judgment that is suspended. … So to sit here and take us chapter and verse of the judgment of the SCA which, according to the law is suspended pending the decision of the appeal, is wrong,” he said.
However, Breitenbach said the SCA’s ruling should be enforced and not be suspended since Mpofu had not used the correct legal route to inform Maughan and Downer about an application for leave to appeal against it at the Constitutional Court.
“The orders setting aside the summons (in the private prosecution) are not suspended, and they may remain enforced. So, unless we are told that Zuma has been granted leave to appeal (as the Constitutional Court) and succeed in the appeal against the full bench on the main judgment on July 7,” said Breitenbach.
Legal expert Mpumelelo Zikalala said there was no possibility that the courts could have ruled in favour of Zuma. Zikalala said he did not foresee Chili’s delay in deciding whether or not to enforce the SCA’s judgment could affect the arms deal case against Zuma. He said that case could still proceed while the country waits to hear whether Zuma should continue prosecuting Downer, the man who is prosecuting him in the State matter.
“If you have a complaint against a prosecutor, in law it does not mean that the matter should be started from scratch. It is not going to bring you an acquittal, it is not going to bring you the removal of that particular prosecutor because the assessment of whatever you are saying could be heard during the trial,” said Zikalala.
Zuma has been accused of using every trick to collapse the arms deal charges, which he faced with French company Thales. This included accusing Downer of being biased against him and unfit to prosecute him.
Zikalala said procedurally if an accused felt the prosecutor was unfair, that could only be determined after all the evidence had been presented before the judge.
“The court must simply say what you are presenting to us now is evidence which we will hear during the trial (arms deal) stage. “If you are saying a prosecutor has misbehaved and my rights to privacy have been violated in this manner, show us during the trial so that we will be able to entertain it, but if you do it during the private prosecution, it is premature,” said Zikalala.
Sunday Tribune