Maughan v Zuma and others

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Kruger J, Henriques J and Masipa J
• Judgment Date: 07 June 2023
• Citation: 2023 JDR 1981 (KZP)
• Docket Number: 12770/22P
• Court: KwaZulu-Natal Division, Pietermaritzburg

The Court (Kruger J, Henriques J and Masipa J):

Introduction:

[1]

In both Case Number 12770/22P and Case Number 13062/22P, the Applicants, Karyn Maughan ('Maughan') and William John Downer ('Downer') respectively, seek the following orders:

2023 JDR 1981 p3

The Court (Kruger J, Henriques J and Masipa J)

(a)

the setting aside of the summons under case number CC52/2022P issued out of the KwaZulu-Natal Division of the High Court, Pietermaritzburg, on 5th September 2022, for the purpose of instituting a private prosecution against the Applicants, by the Respondent;

(b)

interdicting and restraining the Respondent from re-instituting, proceeding with or from taking any further steps pursuant to the said private prosecution; and

(c)

costs of the applications, on an attorney and own client scale, including the costs of two counsel each employed by the Applicants.

[2]

On 10th March 2023 an order was sought and obtained, by consent of all the parties, for the following institutions to be admitted as amici curiae;

(a)

Campaign for Free Expression;

(b)

Media Monitoring Africa Trust;

(c)

South African National Editors' Forum;

(d)

The Helen Suzman Foundation; and

(e)

Democracy in Action NPC.

[3]

It must however be recorded that the applications by the entities listed in (a) to (d) supra, were opposed by the Respondent. It was at the eleventh hour that the Respondent decided to consent to the admission of the aforesaid parties as amici curiae.

The Parties:

[4]

Ms Maughan is a Senior Legal Journalist employed by News24. She has been reporting on the criminal investigation of the Respondent by the Scorpions; his subsequent indictment; and the numerous legal challenges and interlocutory proceedings relating to the Respondent's prosecution, for almost 20 years.

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The Court (Kruger J, Henriques J and Masipa J)

[5]

Mr Downer is a Senior Counsel and Senior State Advocate stationed at the offices of the National Prosecuting Authority, Cape Town.

[6]

The Respondent is a former President of the Republic of South Africa. He is also the private prosecutor against both Applicants.

The amici

[7]

The Campaign for Free Expression (CFE) is a not for profit civil society organisation described as an institute 'dedicated to protecting and expanding the right to free expression for all and enabling everyone to exercise the right to the full regardless of the reason, form or medium, whether this be by speaking out, protesting, arguing or whistle blowing.'

[8]

Media Monitoring Africa Trust (MMA), a not for profit organisation, has been described as an institution that 'has consistently worked to promote ethical and fair journalism by advocating for freedom of expression and supporting the responsible free flow of information to the public on matters of public interest. In doing so, MMA acts as a watchdog that seeks to enable an engaged and informed citizenry, and promotes a culture where the media and the powerful respect human rights to encourage a just and fair society.'

[9]

The South African National Editors Forum (SANEF) consists of editors, journalists and journalism trainers. The organisation 'is committed to championing South Africa's hard-won freedom of expression and promoting quality, ethics and diversity in the South African media.'

[10]

The Helen Suzman Foundation (HSF) is a 'non-governmental organisation whose objectives are to defend the values and institutions that underpin our constitutional democracy and to safeguard the rights of vulnerable persons who are unable to utilise the ordinary political process in order to do so.'

[11]

Democracy in Action (DIA) is described as a 'not-for-profit company, non-profit organisation and civil society organisation, the mandate and purpose of which is to advance, support and defend democratic and constitutional principles and values in the Republic of South Africa, and to support constitutional democracy.'

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The Court (Kruger J, Henriques J and Masipa J)

[12]

The First, Second, Third and Fifth amici have been admitted as such only in respect of the application instituted by Maughan. The Fourth amicus has been admitted in respect of the application instituted by Downer.

Background:

[13]

Following a criminal complaint by the Respondent dated 21st October 2021, the Director of Public Prosecutions, KwaZuiu-Natal Division, on 6th June 2022, issued a certificate in terms of s 7(2) of the Criminal Procedure Act, Act 51 of 1977 (the CPA). This is commonly referred to as a 'nolle prosequi'. The contents of the said certificate are important and provide:

'CERTIFICATE IN TERMS OF SECTION 7 (2) OF ACT 51 OF 1977

I, ELAINE ZUNGU, duly appointed Director of Public Prosecutions, KwaZulu-Natal hereby certify that I have seen all the statements and affidavits on which the charge particularized below is based and that I decline to prosecute at the instance of the State.

SUSPECT:	WILLIAM JOHN DOWNER
COMPLAINANT:	JACOB GEDLEYIHLEKISA ZUMA
ALLEGED CRIME:	CONTRAVENTION OF SECTION 41(6) READ WITH SECTION 41 (7) OF THE NATIONAL PROSECUTING ACT 32 OF 1998
DATE OF ALLEGED CRIME:	09 AUGUST 2021
POLICE REFERENCE:	PMBCAS 309/10/21

This certificate is issued to JACOB GEDLEYIHLEKISA ZUMA

SIGNED at PIETERMARITZBURG on this 06 day of June 2022.'

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The Court (Kruger J, Henriques J and Masipa J)

[14]

As a result, the Respondent, on the 5th September 2022 and in his capacity as 'the private prosecutor' caused a 'summons in a criminal case' to be issued and served on the Applicants. The charges against the Applicants are as follows:

(a)

in respect of Accused 1 (Downer):

'THE CHARGE(S):

IN RESPECT OF ACCUSED 1

1.1

Contravening Section 41(6)(a), read with section 41(7) of Act No. 32 of 1998.

(Unauthorised disclosure of information) (Only in respect of Accused 1)

1.2

Contravening Section 41(6)(b), read with section 41(7) of Act No. 32 of 1998.

(Unauthorised disclosure of the contents of a document); (Only in respect of Accused 1)'

(b)

in respect of Accused 1 (Downer) and / or Accused 2 (Ms Maughan):

'IN RESPECT OF ACCUSED 1 AND/OR ACCUSED 2

2.1

Contravening Section 41(6)(b), read with section 41(7) of Act No. 32 of 1998.

(Unauthorised disclosure of the contents of a document); (In respect of both Accused 1 and Accused 2)

2.2

Accomplice to the breach of section 41 (6)(a) and/or (b), read with section 41 (7) of Act No. 32 of 1998 (Only in respect of Accused 2)'

[15]

In a nutshell, the charges levelled against Downer are that:

(a)

on the 9th to 10th August 2021, he sanctioned the disclosure by Advocate Andrew Breitenbach SC to Maughan of a letter marked 'Medical Confidential'

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The Court (Kruger J, Henriques J and Masipa J)

written by Brigadier General (Dr) Mdutywa ('Mdutywa') of the South African Military Health Service; and

(b)

between the 4th and 13th June 2008, Downer disclosed official information to a journalist, namely Mr Sam Sole.

[16]

In respect of Maughan, it is alleged that:

(a)

she disclosed to News24 readers and / or the general public, without the requisite permission, the contents of the aforesaid letter written by Mdutywa; and

(b)

that she facilitated, aided and / or abetted Downer in the commission of the crime of contravening s 41(6)(a) and / or (b) of the National Prosecuting Authority Act 32 of 1988 (NPA), when Downer sanctioned Mr Breitenbach to disclose the said letter to her, without the requisite permission.

[17]

In response thereto, the applications, set out in paragraph 1 supra, were instituted.

[18]

Maughan seeks to set aside the summons on three grounds, viz:

(a)

that the Respondent, Mr Zuma, has not obtained a nolle prosequi certificate from the Director of Public Prosecutions entitling him to institute the private prosecution against her;

(b)

that Mr Zuma lacks standing to institute the private prosecution under s 7(1) of the CPA 51 of 1977 ('CPA'); and

(c)

that the summons is a gross abuse of court process.

[19]

Downer has alleged that:

(a)

the private prosecution is unsustainable;

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The Court (Kruger J, Henriques J and Masipa J)

(b)

the charge of unauthorised disclosure to Mr Sole is legally and factually groundless;

(c)

Mr Zuma does not satisfy the requirements for standing in terms of s 7(1)(a) of the CPA; and

(d)

the private prosecution is an abuse of process.

[20]

The papers filed in this matter are extensive and the argument spanned two full court days. This court was favoured with extensive written submissions by the amici as well as the applicants and the respondent who raised extensive argument in relation to the merits of the matter. After having carefully considered all the oral and written submissions, we are of the view that there are several matters raised which are dispositive of the application and we propose to only focus on those in this judgment.

[21]

There are several points in limine raised by Downer in his application as well as by the Respondent in opposition to the relief sought specifically by Downer. We propose to deal with these first and thereafter turn to the individual grounds advanced.

(a) Urgency

[22]

In his opposing affidavit, the Respondent has questioned the Applicant's (Maughan's) launching of the application on an urgent basis. However, it appears that this objection to the proceedings is not being persisted with. Indeed, it has not been raised in the Heads of Argument, nor has counsel for the Respondent, Mr Mpofu SC, raised this issue in his submissions before us.

[23]

In any event, a consideration of the chronology of the history of the proceedings...