Maughan v Zuma and another (Leave to Appeal)
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Kruger J, Henriques J and Masipa J |
| Judgment Date | 03 August 2023 |
| Citation | 2023 JDR 2824 (KZP) |
| Hearing Date | 28 July 2023 |
| Docket Number | 12770/22P |
| Court | KwaZulu-Natal Division, Pietermaritzburg |
The Court (Kruger J, Henriques J et Masipa J):
Introduction
In both Case No’s 12770/22P and 13062/22P, the Applicants (Maughan and Downer) seek orders in terms of s18(3) of the Superior Courts Act 10 of 2013 (‘the Act’) to the effect that the judgment of this court of 7 June 2023 shall not be suspended pending the final determination of any applications for leave to appeal or appeals
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against the order. In addition, thereto, in Case No. 13062/22P the Applicant, William John Downer (‘Downer’) seeks the following relief:
For the duration of this order:
The First Respondent’s private prosecution of the Applicant is suspended.
Mr Andrew Breitenbach SC may resume his role as a member of the prosecution team in the criminal prosecution of the First Respondent.
The First Respondent may not pursue any private prosecution of the Applicant on substantially the same charges as those advanced in the summons set aside.’
Both Applicants also seek costs on the attorney and client scale in the event of the applications being unsuccessfully opposed. The First Respondent, Jacob Gedleyihlekisa Zuma (‘Zuma’), has opposed both applications.
The relevant facts which preceded the applications
On 7th June 2023 this court granted the following orders:
A: Case No: 12770/22P
The summons issued out of the KwaZulu-Natal Division of the High Court, Pietermaritzburg on 5 September 2022, under case number CC52/2022P, for the purpose of instituting a private prosecution against the Applicant by the Respondent is set aside.
The Respondent is interdicted and restrained from reinstituting, proceeding with, or from taking any further steps pursuant to, the private prosecution referred to in paragraph 1.
The costs of this application are to be paid by the Respondent on an attorney and own client scale, such costs to include the costs of two counsel where so employed.
B: Case No: 13062/22P
The summons, by which the Respondent instituted a private prosecution of the Applicant in this court in Case CC52/2022P, is set aside.
The Respondent is interdicted from pursuing any private prosecution of the Applicant on substantially the same charges as those advanced in the summons set aside.
The Respondent is ordered to pay the Applicant’s costs on the scale as between attorney and own client, such costs to include the costs of two counsel
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where so employed.’
In summary this court found that:
the First Respondent did not have a nolle prosequi certificate to authorise the institution of a private prosecution against Ms Maughan as required under s 7(2)(a) of the CPA;
the First Respondent lacked standing to institute a private prosecution against Maughan under s 7(1)(a) of the CPA as he did not have “a substantial and peculiar interest” arising from “injury” suffered as a result of Ms Maughan obtaining and publishing the contents of a letter by Brigadier (Dr) Mdutywa;
the First Respondent’s institution of a private prosecution was an abuse of court process, pursued without merit and for an ulterior purpose;
the points in limine raised by the First Respondent of a lack of jurisdiction/prematurity, urgency, the state attorney’s authority to act for Downer and the non-joinder of Maughan were without merit and dismissed.
Subsequent to the delivery of the written judgment on 7 June 2023, at 11h25 on the same day, the JG Zuma Foundation published a statement on Twitter in which it indicated that the First Respondent was to appeal the judgment of the Full Court. This prompted Maughan’s attorneys on 14 June 2023 to address a letter to the First Respondent’s attorneys requesting them to confirm whether or not they did not intend to seek leave to appeal and in the absence of advice to the contrary, assumed that the First Respondent did intend to appeal.
The letter requested an undertaking from the First Respondent that pending the finalisation of all appeal processes the First Respondent would not take steps pursuant to the summons in the private prosecution, which was set aside and that Maughan would not be required to attend the criminal court on 4 August 2023 or any other future postponed date. To avoid a court appearance the parties could agree on joint correspondence to the Judge President requesting directives embodying that agreement.
A response was submitted by the First Respondent’s attorneys on 19 June 2023 in which they confirmed the First Respondent’s instructions to proceed and lodge the application for leave to appeal and also did not provide the undertaking as
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requested. It was for these reasons that the application was instituted by Ms Maughan on 23 June 2023.
Downer’s attorneys had written to the First Respondent’s attorneys on 17 April 2023 for their consent to allow Breitenbach to assist the NPA in doing all things necessary in relation to the First Respondent’s application for the removal of Downer as lead prosecutor in the criminal prosecution. A response was requested by 26 April 2023. A response was forthcoming on 3 May 2023 declining the request. Downer instituted this application on 20 June 2023. The First Respondent’s application for leave to appeal was filed in court on 28 June 2023.
Against that background, the First Respondent raised, in limine, the fact that the applications were not urgent, were premature and should therefore be struck from the roll.
Section 18 applications are by their very nature urgent. This is borne out by the provisions of s 18(4) which provides that an appeal must be dealt with on an extremely urgent basis - see Trendy Greenies (Pty) Ltd t/a Sorbet George v De Bruyn and Others [1] The First Respondent has submitted that the applications are not urgent and will not prevent the Applicants from appearing in court on the 4th August 2023. The underlying reason for this submission is that in the event this court finds in favour of the Applicants, the First Respondent will immediately invoke his right of automatic appeal in terms of s 18(4) of the Act. This is contemptuous as it is pre-empting the judgment and reasoning of the judgment. However, as the s18 applications are inherently urgent, we are of the view that there is no merit in the First Respondent’s point in limine.
The first respondent also submitted that the s 18(3) applications are premature as they were instituted prior to the application for leave to appeal being filed. This submission is not correct. An application for leave to implement and execute an order can be brought prior to an application for leave to appeal being lodged. It can be instituted in circumstances where there has been an indication of an intent to lodge an application for leave to appeal or in circumstances where one is reasonably
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anticipated. This was confirmed by the Supreme Court of Appeal in Ntlemeza v Helen Suzman Foundation and Another [2] .
The legal position
The relief sought by the Applicants is in terms of s18(3) of the Superior Courts Act 10 of 2013 (‘the Act’). This section provides:
Suspension of decision pending appeal
Subject to subsections (2) and (3), and unless the court under exceptional circumstances orders otherwise, the operation and execution of a decision which is the subject of an application for leave to appeal or of an appeal, is suspended pending the decision of the application or appeal.
Subject to subsection (3), unless the court under exceptional circumstances orders otherwise, the operation and execution of a decision that is an interlocutory order not having the effect of a final judgment, which is the subject of an application for leave to appeal or of an appeal, is not suspended pending the decision of the application or appeal.
A court may only order otherwise as contemplated in subsection (1) or (2), if the party who applied to the court to order otherwise, in addition proves on a balance of probabilities that he or she will suffer irreparable harm if the court does not so order and that the other party will not suffer irreparable harm if the court so orders.
If a court orders otherwise, as contemplated in subsection (1)-
(i)
the court must immediately record its reasons for doing so;
(ii)
the aggrieved party has an automatic right of appeal to the next highest court;
(iii)
the court hearing such an appeal must deal with it as a matter of extreme urgency; and
(iv)
such order will be automatically suspended, pending the outcome of such appeal.
For the purposes of subsections (1) and (2), a decision becomes the subject of an application for leave to appeal or of an appeal, as soon as an application for leave to appeal or a notice of appeal is lodged with the registrar in terms of the rules.’
The sole purpose behind a section 18(3) order is to regulate the interim position between the parties pending the finalisation of all appeal processes. This was confirmed by the Constitutional Court in the various applications involving Tasima
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which came before our various courts. [3] The Constitutional Court in Department of Transport and others v Tasima (Pty) Ltd; Tasima (Pty) Ltd and others v Road Traffic Management Corporation and others [4] held the following:
Accordingly, the sole purpose of the Basson 1 order relative to section 18(3) was to regulate the interim position between the litigants from the time when that order was made until the final...
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