Former president Jacob Zuma vs President Cyril Ramaphosa’s private prosecution at the Johannesburg High Court on Wednesday focuses not only on the conduct of these two political titans but also on Shamila Batohi, head of National Prosecuting Authority (NPA).
Beyond the merits of whether Zuma procedurally charged Ramaphosa as an accessory after the NPA’s alleged leak of his medical report – specifically for his alleged failure to investigate the matter further – the court would also test Batohi’s commitment to upholding the NPA’s independence.
An accessory after the fact is a person who helps another person who has already committed a crime escape punishment.
Zuma argues that even after Ramaphosa knew about the alleged crime, he allegedly assisted the alleged perpetrators by failing to use his powers to bring them to account.
Accessories after the fact can also be held criminally responsible for their actions, and often face charges similar to those of the original criminal. In addition, they can be held liable for civil damages suffered by crime victims.
In this scenario, the court will determine whether or not Ramaphosa was an accessory after the fact. This is for allegedly failing to investigate the NPA’s alleged conduct.
Zuma said he reported the alleged misconduct to Justice Minister Ronald Lamola, who was supposed to take the matter to the Legal Practice Council. But no evidence shows those steps were taken.
In Nkandla, Ramaphosa should follow Donald Trump’s example and appear in court to answer the charges Zuma brought in the private prosecution.
This will demonstrate to the public that the rule of law applies even to the president, and that no one is above the law.
Furthermore, it will show the public that the president has no control over the judicial system, indicating to the public that everyone is equal before the law.
From Ramaphosa’s side, Zuma is a bitter old man using private prosecution to settle political scores. It is critical to send a message that the justice system should not be politicised to continue to build public trust in the courts.
Inside the court, arguments would be more refined. The court has set two days aside for arguments. Under judge Selby Baqwa, the case will be heard by three judges.
In his motion, Ramaphosa requests an order that the private prosecution in which he is accused of being an accessory after the fact is reviewed and set aside. Those convicted of this charge could face a maximum sentence of 15 years in prison.
In January, the court granted Ramaphosa an interim interdict exempting him from personally appearing in a criminal court. As a result, on January 19 the criminal case was postponed in his absence.
In the court papers, the NPA argues that any insinuation that the prosecuting authority was acting to shield Ramaphosa from prosecution would be “mischievous,” adding that its submissions were purely limited to demonstrating its “independence”.
Of course, according to the NPA’s submission, Ramaphosa was never a suspect in any criminal investigation Zuma opened against state prosecutor Billy Downer.
Further, its decision to decline the prosecution of Downer, one of its own, was based on the merits of the evidence and the applicable law.
But soon thereafter, the NPA made two critical concessions.
The first concession relates to the wording in its certificate to decline Donwer’s prosecution. Verbatim, the NPA said it declined to prosecute “any person in connection with this matter at the instance of the state”.
According to submissions before the court, the wording, and more specifically the words “decline to prosecute any person”, is a matter for interpretation and should be given their ordinary grammatical meaning, said the NPA.
The NPA continued: “If one interprets the said words objectively, without reference to the peculiar circumstances herein, there can be no doubt that it can include [Ramaphosa] or any other person, for that matter.”
According to the deponent, Elaine Zungu, the director of prosecutions in KwaZulu-Natal: “My own view is that, when I decline to prosecute ‘any person’ in connection with a particular case, I decline to prosecute all living persons, whether in contemplation as suspect or not.”
But she soon concedes: “I am, however, also able to understand the view that to decline to prosecute ‘any person’ means any person against whom an allegation is made. While I do not hold the latter view, I can see how some might justifiably hold that view.”
The second concession relates to a media statement issued by the NPA after Zuma summoned Ramaphosa, presumably to show that Zuma was wrong. Again, says the NPA: “In so far as the media statement has caused some consternation it is, I submit, a matter of interpretation”.
This suggests that the NPA is not taking a definitive stance on the matter. The NPA leaves it up to the court and the public to interpret the statement and form their own opinion. It is a way of distancing itself from any potential controversy that may arise from it.
But frankly, the NPA was not supposed to issue media statements. It should have stayed out of the debate altogether and let the courts decide on the matter. This is not how the justice system should work.
The NPA should remain impartial and not use its public platform to influence public opinion.
Ultimately, the courts should be the ones to make the decision on the matter, free from outside influence.
And the courts did so in January, when they granted Ramaphosa leave to miss his first court appearance.
Yet the NPA placed itself in an awkward position by making a statement that could be seen as siding with one party or the other. It should have kept silent and allowed the court to reach a verdict without interference.
And to simply say it is “a matter of interpretation” only displays the underlying levels of arrogance within the prosecuting authority.
This kind of statement undermines the public’s trust in the NPA’s ability to fairly and independently handle cases.
This has the potential to create a sense of impunity and a lack of faith in the justice system. It also sends a message that the NPA is not impartial and does not act in the true interests of justice.
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