IN THE HIGH COURT OF SOUTH AFRICA GAUTENG LOCAL DIVISION, JOHANNESBURG ° CASE NUMBER: 0027676/2022 In the application of: PRESIDENT OF THE REPUBLIC OF SOUTH Applicant AFRICA, And JACOB GEDLEYIHLEKISA ZUMA First Respondent THE DIRECTOR OF PUBLIC PROSECUTIONS, Second Respondent KWAZULU-NATAL_ NATIONAL PROSECUTING AUTHORITY Third Respondent THE REGISTRAR OF THE HIGH COURT OF SOUTH AFRICA; GAUTENG LOCAL DIVISION, JOHANNESBURG Fourth Respondent REPLYING AFFIDAVIT TO THE FIRST RESPONDENT'S ANSWERING AFFIDAVIT|, the undersigned, MATAMELA CYRIL RAMAPHOSA. do hereby make oath and state as follows: 1 1am an adult male and the President of the Republic of South Africa, elected as such in terrfis of the Constitution of the Republic of South Africa. 2 | am cited in a purported private prosecution brought by the first respondent before this Honourable Court, under case number 2022/059772 3 Unless otherwise stated or the context indicates to the contrary, the facts set out in this affidavit are within my personal knowledge. They are, to the best of my knowledge and belief, all true and correct. Where I make legal submissions, | do so on the advice of my legal representatives. | accept such advice as correct. 4 This affidavit has been prepared under very tight timelines and filed two court days after receipt of the frst respondent's answering affidavit. | have thus been unable to respond to every allegation in the first respondent's 87 page answering affidavit. There are in fact numerous allegations that are emotive and contain unfounded political innuendos that are not relevant to the crisp issues that arise for determination in this application. 5 | first deal thematically with the answering affidavit, and then respond, where possible, sequentially to the allegations contained therein. Allegations in the answering affidavit that | do not specifically traverse are not admitted. To the polextent that the submissions contained in the first respondent's answering affidavit are in conflict with what is stated in the applicant's founding affidavit, they must be taken to be denied. Before | proceed further, | need to make clear to this Honourable Court that the relief | seek of interdicting any further steps in the private prosecution against me (and the setting aside of the summonses and nolle prosequi certificates under Part B) is based on several grounds — one of which is that the private prosecution is for an ulterior purpose. The first respondent has, in his answering affidavit, deliberatelysframed my application as being premised entirely on the allegation that the private prosecution is for an improper motive and ulterior purpose. The core of the first respondent's contention is that this Court does not enjoy jurisdiction to determine and grant the interdict since the main complaint is that the prosecution is for an improper motive and ulterior purpose — and such a complaint must be determined by the criminal court. The assertion that my application concems “in the main’ alleged improper motive or ulterior purpose is factually inaccurate. 6.1 First, a proper reading of my founding affidavit shows that | have alleged ulterior purpose and not improper motive. The cases that the first respéndent relies upon on improper motive are irrelevant. 62 Second, the review court will determine the review ground based on ulterior purpose. Only the cases dealing with ulterior purpose are relevant Those cases make it clear that ulterior purpose may invalidate a criminal prosecution. hen10 Ulterior purpose is therefore not the main complaint in my application — it is but one of the grounds on which | rely. The result of the first respondent's approach is that the core grounds on which | challenge the summons have not been seriously disputed. These grounds have also not been disputed by the second and third respondents. The result is that | have established a strong or exceptional prima case for the review and setting aside of the summons under Part B. To the extent that they are interpreted to relate to me, | have done so also in relation to the nolle prosequi certificates on which the first respondent relies for the issuing of the summons. The first respondent raises a number of unmeritorious grounds styled as in limine points. Some of them are not in limine points but go to the merits of the Part A application. None of the in limine points have any merit. Once they are dismissed, there is no real defence against the application for interim relief. To avoid any confusion, | reiterate below what my case is. OVERVIEW OF THE APPLICANT'S CASE 1 The first respondent deliberately misconceives the grounds that | rely on in this application. In broad terms, the primary basis for challenging the summons and the private prosecution is that the summonses are prima facie unlawful, unconstitutional, and invalid because they do not meet the jurisdictional requirements for a valid private prosecution. These requirements are set out in sections 7 and 9 of the Criminal Procedure Act 51 of 1977 (‘the CPA’).12 Sections 7(1) read with (2) of the CPA requires that before a private prosecution can be instituted, the DPP must have declined to prosecute an offence or charge against a specific person. The DPP must further have issued a nolle prosequi certificate in respect of that offence and that person. This specificity ensures that ‘summonse§ to commence private prosecutions comply with the rule of law — i.e section 1(c) of the Constitution. A nolle prosequi certificate may therefore not be issued against unnamed persons in respect of an unnamed and unspecified charge. 13 My main contention, in regard to section 7(1) and (2) of the CPA, is that the summonses were issued without a valid nolle prosequi certificate that relates to me and for a charge against me. This breaches both section 7 of the CPA and the Constitution. 14 Without limiting the grounds of attack set out in my founding affidavit, | ‘summarise the pertinent reasons on which | rely that the summons and the private prosecution do not meet the requirements of a valid private prosecution under section 7 of the CPA. 14.1. The charge in the nolle prosequi certificates relates to the primary criminal offence committed on 9 August 2021, by persons who allegedly disclosed confidential information in breach of section 41(6) and (7) of the National Prosecuting Authority Act 32 of 1998 (‘the NPA Act’). There is no allegation that | disclosed confidential information in breach of these sections.14.2 14.3 144 145 The nolle prosequi certificates state that the crime to which they relate occurred on 9 August 2021. This date predates the request by the first respondent to me to institute an investigation against the NPA officials on Which the alleged crime of accessory after the fact or defeating the ends of justice is based. It is practically impossible that | could have committed the crime of accessory after the fact or defeating the ends of justice on 9 August 2021, before the request was made to me to intervene. As a result, the rfolle prosequi certificates for crimes allegedly committed on 9 August 2021 cannot be used to issue summons for crimes that | allegedly committed after 25 August 2021 Paragraph 8.5 of the first respondent's answering affidavit (at page 009-8) makes it clear that “the accessory crime was committed after 25 August 2022". The accessory crime was not committed on 9 August 2022 This means that the summons was issued against me without a nolle prosequi certificate that relates to me and a charge against me, The summons and the private prosecution are invalid for this reason alone To the extent that the nolle prosequi certificate dated 21 November 2022 may be interpreted to relate to me, which is denied, it does not contain the details or particulars and lacks the specificity required of a valid nolle prosequi certificate issued in terms of section 7 of the CPA. The certificate does not set out a charge against me, it does not name me or link me in any way to the alleged crime stated in the certificate. It is accordingly invalid against me because it fails to meet the requirements of section 7 of the CPA, is an irrational exercise of powers and/or is void for vagueness. ) ] ‘6 y mH14.6 147 14.8 The fiolle prosequi certificate dated 6 June 2022 specifically mentions Mr William Downer SC of the NPA as a suspect. It does not relate to me and a charge against me. It has also expired. That certificate appears as annexure FA7 to my founding affidavit. Issuing a nolle prosequi certificate constitutes administrative action under the Promotion of Access to Justice Act 3 of 2000 ("PAJA’). If the nolle prosequi certificates related to me, which | deny, the DPP was obliged under PAJA to afford me an opportunity to be heard before the nolle prosequi certificates could lawfully be issued. The DPP did not afford me an opportunity to be heard. To the extent that PAJA does not apply to the issuing of the nolle prosequi certificates, to act rationally, the DPP was required to hear me before issuing the certificates. The DPP acted irrationally by not hearing me before issuing the certificates. Section 9 of the CPA requires a security deposit to be made before a valid private prosecution may be authorised. The first respondent did not pay a security deposit before issuing the summons. There are general and unfocused allegations in the answering affidavit that he did, but there is no documentation to evidence this. No summons should have been issued without proof that a security deposit had been paid. Issuing the summons in such circumstances was unlawful. This unlawfuiness cannot be remedied by any attempt to pay a security deposit after the summons were already issued. ArH15 16 7 14.9. The alleged failure to act does not constitute an offence. The private prosecution is frivolous and vexatious. There can be no substantial and peculiar interest in frivolous and vexatious proceedings The implications of the failure to comply with section 7 of the CPA is that the summonses are not underpinned by a valid nolle prosequi certificate(s) that relates to me and a charge against me. The charge underlying the purported private prosecution was never placed before the NPA. The DPP never declined to prosecute me in relation to that charge. The purported private prosecution constitutes an impermissible attempt to bypass the NPA, which is the primary decision maker over criminal prosecutions, and is unconstitutional. From the above, it is clear that ulterior purpose is not the main basis for the application, What the first respondent fails to understand is that a private prosecution is different from a public prosecution in that a private prosecution is valid only if it meets the requirements of sections 7 and 9 of the CPA. If not, itis an unlawful private prosecution and can be set aside and interdicted. In what follows, | respond thematically to the following issues in the first respondent's answering affidavit, and then respond paragraph-by-paragraph to the remaining issues 17.1 This Court's jurisdiction to determine the interim interdict pending the review application under Part B; 17.2. The glleged defects in the application; AH17.3. The alleged lack of urgency; 17.4 Exhausting internal remedies; 17.5 Alleged misjoinder or non-joinder of the National Director of Public Prosecutions; 17.6 Requirements for an interdict have been met; 17.7 Sequential response to the answering affidavit. THEMATIC RESPONSE TO THE FIRST RESPONDENT'S ANSWERING AFFIDAVIT Jurisdiction (AA paras 20-42) 18 The essence of the first respondent's argument on jurisdiction is that this Court lacks jurisdiction to determine this application because my application, in the main, is concerned with the complaint that the private prosecution is for an improper mfbtive and ulterior purpose. The first respondent contends that | have used improper motive and political conspiracy as the “master key to open the door of the urgent court” to avoid pleading and raising a defence in the criminal proceedings. The competent court to entertain and decide this defence, he says, is the criminal court — not the civil or motion court, let alone the urgent court. This includes my assertion that he does not have title to prosecute. The first respondent contends further that the appropriate avenue is to plead to the charges in the criminal court and then in terms of section 106(h) of the CPA, raise the defence that he does not have title to prosecute.19 20 21 22 Jurisdiction is determined on the case that I have pleaded and not on the first respondent's misconstruction of it or indeed its merits. The first respondent's assertion that this Court lacks jurisdiction is wrong for three reasons. The first is that it is factually incorrect that the primary basis for the application is that the private prosecution is for an ulterior purpose (since I do not rely on improper motive). | have already demonstrated this above, where | explained what the grounds are on which I base my application. Ulterior purpose is but one of my grounds. This is also very clearly demonstrated in my founding affidavit at paragraphs 17 to 22 and 72 to 92. That the first respondent has chosen to focus on improper motive and ulterior purpose and to elevate these to being the primary bases for the application does not in fact make them the primary bases for the application. This focus and elevation is misplaced (and self-serving). The primary basis for the application is that prima facie, the purported private prosecution does not meet the jurisdictional requirements for a valid private prosecution in terms of sections 7 and 9 of the CPA. The first respondent provides no answer to this primary complaint. Nor do the second and third respondents. The second reason is that it is unhelpful for the first respondent to seek to draw parallels bétween his prosecution and mine. He has cited several cases, including the recent judgment of the Constitutional Court in Mineral Sands Resources (Pty) Ltd and Others v Reddell and Others (CCT 66/21) [2022] ZAC 37 (14 November 2022) in support of the proposition that this Court does not have jurisdiction to determine the urgent application. | 10 ent:23 am advised that this is not what that case determined. What the Constitutional Court did, in Rendell, was to confirm the established principle that “bad motive in and of itsei can never be an adequate ground for escaping arrest and prosecution." That does not mean that an accused person is ousted from challenging a prosecution in motion court for an ulterior purpose. The first respondent's reliance on National Director of Public Prosecutions v Zuma 2009 (2) SA 277 (SCA) para 37 where it is said that: “a prosecution is not wrongful merely because it is brought for an improper purpose. It will only be wrongful if, in addition, reasonable and probable grounds for prosecuting are absent, something not alleged by Mr Zuma and which in any event can only be determined once criminal proceedings have been concluded’ is also misplaced. The Court there was explaining that an action for malicious prosecution only arises afterthe criminal proceedings against the plaintiff have terminated in his favour or where the Attorney-General has declined to prosecute. It has nothing to do with whether or not this court has jurisdiction to grant an interim interdict in a private prosecution The third reason is that there are several cases that establish clearly that this Court has jurisdiction in private prosecution matters to determine the validity of a Private prosecution, to set it aside or interdict it. | am advised that these cases will be addressed in written and oral argument before this Court. For now, it is sufficient to highlight what the court said in Solomon v Magistrate, Pretoria, And Another 19§0 (3) SA 603 (T) at 607-608: “I can find in the sections relied upon no evidence that the provisions relating to the costs of unfounded and vexatious prosecutions or the litle 1 m =of the prosecutor to bring the proceedings, were intended by the Legislature to be exhaustive and to exclude any right to invoke the assistance of the Supreme Court, as the applicant now does. Mr. Retief maintained (I think in support of his contention that the provisions referred to were exhaustive) that under secs. 17 and 18 of the Act the private party who had obtained the Attorney-General's certificate was givgn an absolute right to prosecute, of which he could not be deprived by the Court. No doubt the sections referred to do bestow a right to prosecute, subject to the necessary conditions, but | cannot take the view that that fact excludes the jurisdiction of the Court to interfere on proper cause. If Mr. Retief's contention were correct, this Court would have no power to intervene even though it were shown in the clearest possible manner that the party who had instituted the private prosecution had no interest whatever in the outcome of the trial and had_embarked upon it for some ulterior motive, such for example as to prevent a business competitor from leaving the country on his lawful business, or to delay him in so doing. In such a case, ifthe prosecution were launched in a superior Court, | do not consider that it could be held that the remedies provided in the sections of the Act to which Mr. Retief referred were exhausted. The taking out of the summons would clearly be an abwse of the process of the Court. in that it had been undertaken not with the object of having justice done to a wrongdoer, but in order to enable the prosecutor to harrass the accused or fraudulently to defeat his rights (see King v Henderson (1898, A.C. F 720); cf. Berman v Brimacombe (1925 TPD 548)). The process of the Court, provided for a particular purpose, would be used not for that purpose, but for the achievement of a totally different object, namely for the oppression of an adversary. The Court has an inherent power to prevent abuse of its process by frivolous or vexatious proceedings (Western Assurance Co v Caldwell's Trustee 1918 AD 262): Corderoy v Union Government (1918 AD 512 at p. 517): Hudson v Hudson and Another (1927 AD 259 at p. 267)), and though this_power is usually asserted in connection with civil proceedings it exists, in my view, equally where the process abused is that provided for in_the conduct of a private prosecution. In such a case as | have 1224 postulated, therefore, this Court would in my opinion by virtue of its inherent power be entitled to set aside a criminal summons issued by ils own officials or to interdict further proceedings upon it. It is also by virtue of its inherent power that the Court interferes to restrain illegalities in inferior courts either by way of interdict or mandamus or by declaratory order, as it has on occasion done (see, €.g., Rex v Boon (1912 TPD 1136); Schlosberg v. Attorney-General (1936, W.L.D. 59); cf. Joseph Baynes, Ltd v Minister of Justice (1926 TPD 390), per STRATFORD, J., at p. 398; Rascher v Minister of Justice (1930 TPD 810)). | have no doubt whatever that in a similar case the Court would have power to stop a private prosecution in an inferior court. Mr. Retief referred me to Rex v Diab (1924 TPD 337 at p. 341), in which MASON, J-P., said that the right and duty of prosecution was absolutely under the contro! and management of the Attorney-General and, so long as he complied with the provisions of the law with reference to prosecutions and trials the Court was not entitled to interfere. He argued that similarly a private prosecution was absolutely under the control and management of the private prosecutor and that the Court could not intervene. The case of the private prosecutor is however, different from that of the Attorney-General, in that the title of the former to prosecute is conditional upon his possession of such an interest as is described in the Act. and the Court is therefore entitled to inquire into the question whether he has such an interest or not.” (own emphasis.) | must furthér highlight that the first respondent's complaint about jurisdiction also misses the primary case that | have made out in my founding affidavit and reiterated here. The insistence that | can only raise “defences” in the criminal court suggests that in the first respondent's mind, his private prosecution is lawful and properly instituted. Itis not. The summonses are invalid because they were underpinned by nolle prosequi certificates that do not relate to me and in respect of a charge against me. This Court is empowered to prevent the first respondent 1325 26 from unlawfully hauling me before a criminal court in circumstances where the very process and the basis for purporting to do so are unlawful and where | have instituted a claim in this Court to decide the lawfulness of the summons. In addition, this Court has inherent powers to grant interim relief pendente lite, especially to prevent a serious injustice as in the present case. It has these powers also under section 38, 172 and 173 of the Constitution. The first respondent's unlawful conduct threatens my constitutional rights, including the rights in sections 9, 10, 12(1)(a), 21 and 34 (fair trial) of the Constitution. | have referred to and invoked my constitutional rights in the founding affidavit. His conduct also breaches the constitutional scheme in section 179 of the Constitution since he has attempted to bypass the constitutional authority of the NPA by issuing the summons in respect of criminal charges that were not considered against me by the NPA and in which the NPA has not declined to prosecute me. | am advised that further submissions ‘will be made at the hearing of the application in this regard The alleged defects (AA paras 12-19) 27 The first respondent submits that the application is fatally defective because my founding affidavit does not contain the full details of the commissioner of oaths. This is in reference to the fact that when | deposed to my founding affidavit on 26 December 2022, the Commissioner of Oaths, Warrant Officer Mabusela, did 14 dw28 29 30 3 not print his full name and specify the area and the business address where he holds his appointment. | am advised that the omission does not render the application fatally defective as there hag been substantial compliance with the prescripts of the Justices of the Peace and Commissioners of Oaths Act 16 of 1963 and the Regulations (‘the Regulations’) issued in terms thereof. Despite this, | understand that Warrant Officer Mabusela deposed to an affidavit wherein he explained that the omission was an oversight. This affidavit is attached hereto as “RA1". | am advised that it was served on the respondents and loaded onto CaseLines on 6 January 2023. In light of Warrant Officer Mabusela's affidavit, | humbly request that the Court condone the inadvertent omissions. | am adviséd and respectfully submit that there is ample authority that such condonation is permissible as the relevant requirements of the Regulations are directory. | am further advised that the relevant case law will be presented to this Court at the hearing of the application | respectfully submit that it would be in the interests of justice to grant the condonation to prevent serious injustice continuing. The first respondent will suffer no prejudice. He has fully set out his case in opposition to my application, The second respondent has filed an answering affidavit without raising the unmeritorious objection raised by the first respondent. 18 fon32 Further submissions will be made at the hearing of the application in this regard. The alleged lack of urgency (AA paras 43-86) 33. The essence of the first respondent's arguments contesting urgency are that: 33.1 33,2 33.3 33.4 33.5 33.6 33.7 This is a case of self-created urgency because | stalled and wasted time between 15 and 27 December 2022 by engaging in futile correspondence instegd of launching the application. | ought to have launched the application before the ANC’s national conference since that was imminent, and my facing criminal proceedings would have made me ineligible to stand for President of the ANC in terms of the ANC’s step aside rule. Once the election results were delivered on 19 December 2022, the urgency fell away because | was elected as President. | can now “challenge the charges in the ordinary course.” | only launched the urgent application 7 days after 21 December 2022 when, the second summons were issued | set unreasonable timelines for opposition, and elected dates when the first respondent's legal representatives were away on holiday | do not raise valid grounds of urgency in my application. There is no reason why | cannot be treated in the same way as the two accused, Mr Downer SC and Ms Karyn Maughan, by appearing as f fly 16 ws a accused persons35 36 33.8. I can obtain relief in the ordinary course. There is no dying infant, and no separate law for Presidents. 33.9. There will not be any adverse impact on investor confidence in the country should | appear in criminal proceedings. These contentions are unfounded. | acted promptly in bringing this application. It is not possible for me to obtain redress in the ordinary cause. First, | need to clarify what once more appears to be a purposeful mischaracterisation of my case. In my founding affidavit, | explained that the urgency of this application is necessitated by the first respondent's insistence to continue with an unlawful private prosecution for which | am required to appear on 19 January 2023. This is the urgency. If this Court does not halt the private prosecution, | will be subjected to an unlawful prosecution in circumstances where | have a right not to be subjected to such. | cannot obtain redress in the ordinary cause. As | explained, by the time the application to set aside the summonses and the certificates is heard, the unlawful private prosecution — in breach of my rights — will be well underway. My constitutional rights, dignity and reputation will be irreparably harmed. The urgency is further demonstrated in the first respondent's own answering affidavit. In paragraph 8.3, the first respondent explains that: 1737 38 “As the matters currently stand, [!] am duty bound to appear and be present at [my] criminal trial, which is set down on 19 January 2023, ° failing which a warrant for [my] arrest will be issued.” Thus, as things stand, | am forced to attend and remain in attendance at the criminal court on 19 January 2023 at 09h30. These unlawful summonses limit my rights to freedom of movement and personal liberty without any lawful basis. As | explained in my founding affidavit, this also adversely affects my office, and my ability to do the work that | have been elected to do by members of the public. The first respondent tries to downplay the adverse impacts to the public by saying, in effect, that it is nothing new for a sitting President to face criminal charges, and that the Rand has previously remained constant despite former President Mandela, for instance, being summoned to appear in court to explain why he had appointed a commission of inquiry. He also cites himself as an example, at the time when he was a deputy president of the ANC. The only difficulty with these comparators is that they are in fact not appropriate comparators. It is also not useful to cite Presidents and Vice Presidents of other Jurisdictions. None of the examples cited by Mr Zuma deal with the position where a sitting President is hauled, unlawfully, before the courts in a private prosecution It is also clear from. the first respondent's own answering affidavit that if an interdict is pot granted, and the criminal proceedings continue, the ANC’s step aside rule may become relevant to me — even in the face of an unlawful prosecution. In paragraph 46 of the answering affidavit, the first respondent quotes paragraph 3.1 of the ANC’s “Guidelines for Implementing National 1839 Conference Resolutions”. This paragraph deals with ‘Stepping aside following indictment to appear in a court of law on criminal charges” and it reads as follows “A member, office bearer or public representative who has been indicted to appear in a court of law on a charge of corruption or other serious crite must immediately step aside pending the finalisation of his or her case.” In paragraph 48 of the first respondent's answering affidavit, he explains that: “this step aside rule - if applied without fear, favour or prejudice to all cadres in the ANC jn leadership positions, legislatures, or other goverment structures, would have rendered any application urgent as the commencement of the national conference of the ANC was imminent and the applicant who was in a leadership position both in the ANC and in government and was a candidate for re-election was of the view that the rule was implicated." 40 The step aside rule remains relevant post the elective conference. If | am 41 unlawfully hauled before the criminal court on the strength of the invalid ‘summons, the first respondent will likely be one of the first persons to demand that | step aside from my elected position in the ANC and in government as President of the Republic. The first respondent takes issue with the fact that | did not run to court at the first instance and elected instead to engage with him to withdraw the summons. It is . f 19 MH42 43 well-established, | am advised, that where a party frst seeks to resolve the matter amicably before lodging an urgent application, it cannot be said that the applicant had been dilatory in bringing the application or that urgency was self-created This Court has in the past remarked upon this often-abused attack of self-created urgency when applications are clearly urgent. The decisive question on urgency is whether | may obtain substantial redress in due courseegarding the unlawful summonses and their serious consequences. | cannot because once | am forced to appear before this Court, and to remain in attendance, on the strength of an unlawful private prosecution, my rights will have been irreparably breached. This includes my right to freedom of movement, my right to dignity, to name a few. The consequences to the general public can also not be reversed. ‘What is truly evident from the above is that the so-called delay in bringing this application was occasioned by my efforts to resolve the matter amicably and once it became clear (on 21 December 2022, when the new summons were issued) that the first respondent would not withdraw the unlawful summonses unconditionally, the application was brought within six days — during a period when my legal representatives were also attending to their families during the holidays. As such, the criticism on the ground of alleged self-created urgency is entirely unfounded Itis the first respondent that strategically chose to issue the summons on the eve of the ANC’s conference. He could have acted earlier than that date and not just before a public holiday on 16 December 2022. The first correspondence that my 20 AMA45 46 47 attorneys sent to the first respondent's attorneys elicited a proposal to withdraw and reissue the summons of 15 December 2022. There was therefore good reason for attempting to resolve the matter amicably. It was only once the first respondent's attorneys refused to withdraw the summons unconditionally and instead issued the second summons that it was reasonable to institute the present proceedings. The positions of Mr Downer SC and Ms Maughan are not the same as mine and their election on how to proceed does not bind me or disentitie me to relief that | have made*out a case for. By way of example, an unlawful limitation of my freedom of movement has serious implications for the functioning of government. This cannot simply be belittled and ignored, The simple fact of the matter is that | cannot obtain substantial relief in due course. Once | am forced to appear before the criminal court, and to remain in attendance, on account of an unlawful summons, my constitutional rights will have been irreparably violated and this Court will have sanctioned an unlawful and unconstitutional exercise of statutory powers. Further submissions will be made at the hearing of the application on urgency. Internal remedies (AA paras 87-99) 48 As | understand it, the first respondent's complaint under this theme has three legs. First, he says that the application is premature because | can raise any and all defences in the criminal proceedings. As | have expressed earlier in this 21 Am49 affidavit, and in my founding affidavit, | have a right not to be subjected to an unlawful private prosecution. Unlike the position with public prosecutions, private prosecutions are different. | do not have to wait for the unlawful criminal proceedings against me to start. | am entitled to stop them in their tracks while their lawfulness or otherwise is determined. He also says that in terms of section 16(2) of the CPA, | am required — like all other accused persons — at the end of the trial once the court finds that the prosecution was vexatious or unfounded, to obtain a remedy of costs and expenses against him. In other words, my internal remedy is available to me at the end of the trial. This is not a remedy that | am required to exhaust. It is a remedy that is available if | choose to subject myself to an unlawful prosecution. | do not choose to do so. Lastly, he says that I should challenge the prosecutor's title to prosecute at the end of the criminal trial as was said to him by the Supreme Court of Appeal in his matters. I have explained what, the primary basis of my application is — it is not improper motive. Ulterior purpose is just one of many grounds. In any event, mine is a private prosecution, His was a public prosecution. There is a difference between the two; the CPA requires a private prosecutor to establish certain jurisdictional requirements before they can get through the door. What is clear, however, is that | am entitled to challenge the title to prosecute by way of interdict in a private prosecution. Second, the first respondent contends that | have failed to exhaust the remedies provided for in section 179(5)(d) of the Constitution read with section 22(2)(c) of the NPA Act. Section 175(5)(d) of the Constitution provides: *(5) The National Director of Public Prosecutions- 22 Amy(d) may review a decision to prosecute or not to prosecute, after consulting the relevant Director of Public Prosecutions and after taking representations within a period specified by the National Director of Public Prosecutions, from the following: (i) The accused person (i) “The complainant. (ii) Any other person or party whom the National Director considers to be relevant.” 50 Section 22(2)(c) of the NPA Act states: 51 “(2) In accordance with section 179 of the Constitution, the National Director — (0) may review a decision to prosecute or not to prosecute, after consulting the relevant Director and after taking representations, within the period specified by the National Director, of the accused person, the complainant and any other person or party whom the National Director considers to be relevant.” According to the first respondent, | was duty bound to approach the NDPP for an internal review of the decision not to prosecute. The first respondent misunderstands my case. My complaint is not against the decision not to prosecute. My case is simply that the nolle prosequi certificates to which the decision to prosecute relates do not apply to me and therefore, the summonses are unlawful and invalid. There is no nolle prosequi certificate that relates to me and a charge against me. That's the point. | am not concemed with the lawfulness of the decision not to prosecute. My concern is with the unlawful attempt to apply the nolle prosequi certificate to me, and the consequent issuing of the summonses. =52 53 54 Even in the alternative where | challenge the nolle prosequi certificates if they are found to relate to me, | do not challenge the DPP’s decision not to prosecute. I challenge the validity of the nolle prosequi certificates in as far as they may be found to relate to me. Itis telling that on the one hang the first respondent contends that administrative law concepts like the duty to exhaust internal remedies are applicable in my case but in the same breath contends that | am only entitled to raise my complaints with the private prosecution in the criminal courts. These two conflicting ideas cannot exist at the same time. Further submissions will be made at the hearing of the application in this regard. Alleged misjoinder or non-joinder of the NDPP (AA paras 100-108) 55 The first respondent contends that | incorrectly cited the NPA and was obliged to join the National Director of Public Prosecutions instead. He states that the NDPP has a substantial interest in the matter because she is “the final decision maker’ in terms of section 179(6)(4) of the NPA Act, and further thatthe eres with which this purported private prosecution are concemed relate to the question whether the NDPP consented to the release of his medical certificate. He further says that the media statement issued by the NPA on 21 December 2022 in which the NPA clarifies that the nolle prosequi certificates do not relate to me, speak ‘on behalf of the NDPP. SN56 57 58 | am advised and respectfully submit that itis clear that the media statement was issued by the NPA as that institution is defined under section 179(1) of the Constitution. It can only be understood to have been properly issued with the authority of the functionaries described in section 179(1) of the Constitution. The second and third respondents have not said anything to the contrary in response to what | say in the founding affidavit regarding this media statement. | am further advised that as these are urgent proceedings for interim relief, the media statement can be accepted by this Court. 1am advised further, however, that the contentions that the NDPP should have been joined instead of the NPA is without any basis. This is for two reasons. The first is that the NPA includes the NDPP. In terms of section 179(1), the NPA consists of a National Director of Public Prosecutions, who is the head of the prosecuting authority, and Directors of Public Prosecutions and prosecutors as determined by the NPA Act. | cited the DPP separately only because she issued the nolle prosequi certificates relevant to the application. The second reason is linked to the first one, and itis that there are many cases where the NPA is cited without the need to cite the NDPP specifically. In fact, the NPA was recently an appellant in a matter in the Supreme Court of Appeal. | annex, in this regard, the first page fiom the recent judgment of National Prosecuting Authority v Public Servants Association obo Meinties and Others; the Minister of Justice and Correctional Services and Director-General: Department of Justice and Constitutional Development v Public Servants Association obo Meinijies and Others [2021] ZASCA 160; 2022 (3) SA 409 (SCA) (17 November 2021) as 2559 The contention is clearly made because the first respondent overlooked the provisions of section 179(1) of the Constitution. The contention is also irrelevant to my challenge and relief sought in respect of the summons. The joinder of the NDPP is irrelevant to that relief. To the extent that the nolle prosequi certificates are in issue, itis sufficient that the DPP has been cited as the second respondent. The second respondent has no personal interest apart from the interest of the NPA. The joinder issue is further irrelevant since the DPP has filed an answering affidavit without raising this unmeritorious contention. | shall file a replying affidavit to that answering affidavit, 60 _ Its further irrelevant to the alleged crimes against me whether or not the NDPP. consented to the disclosure of the alleged confidential information. The reason for this is that | am not charged with the primary offence under section 41(6) and (7) of the NPA Act. 61 Further submissions will be made at the hearing of the application in this regard. Entitlement to the relief - requirements for an interim interdict (AA paras 109- 174) The OUTA principle 62 _ In short, the first respondent contends that the application under part Ais stillborn as against the second to fourth respondents because | have not addressed nor do | satisfy the requirements set out in Outa in regard to an interim interdict to halt the exercise of statutory and constitutional powers. He alleges that there is 26 AmHx63 64 No attempt to demonstrate (a) that this is the clearest of cases and/or (b) the separation of powers harm is tolerable in proportion | deny that the requirements of Outa have not been met. While these requirements have not been addressed under those specific headings, | have, in my founding affidavit demonstrated a clear case. An important consideration in this regard, is whether the harm apprehended by the claimant amounts to a breach of one or more fundamental rights warranted by the Bill of Rights, As | have stated in the founding affidavit, the following rights will be breached if the interdict is not granted: 63.1 My right to equal protection of the law 63.2 My right to dignity. 63.3. My right to personal freedom, movement and security. 63.4 My right to a fair trial There will also not be any harm to the constitutional or statutory powers of the second to fourth respondents. In any event, this is a matter for the second to fourth respondents to address. The simple fact is that all three respondents have exercised their powers. The second respondent has filed an answering affidavit in which this contention is not raised at all, Furthermore, the media statement by the NPA shows that it is the first respondent's attempt to unlawfully privately prosecute me which is at odds with the statutory powers of the NPA and the second respondent. The fourth respondent has not filed any opposition or Ae 7affidavit. In any event, interdicting reliance on invalid summons can never constitute an impermissible breach of the separation of powers doctrine, 65 The real answer to the first respondent's contention is that itis irrelevant to the relief sought against him in relation to the summons and the unlawful private prosecution. Itis therefore not a defence available to him. 66 The proposition that Part A as against the second and further respondents is stillborn is, in these circumstances, meritless. 67 Further submissions will be made at the hearing of the application in this regard. The other requirements for an interdict have also been met 68 The first respondent contends that the remainder of the requirements for an interim interdict have not been met. 69 Under prima facie right, he contends that there is no right not to be criminally prosecuted. Second, that | cannot assert individual rights if | am acting in my capacity as the President. Lastly, that | cannot request this Court to sanction an order that excuses me from attending a criminal hearing as an accused. 70 The first respondent yet again misconstrues my complaint and the rights | assert. AAs | explained in my founding affidavit, | have a right not to be subjected to an unlawful private prosecution where the private prosecution does not meet the requirements of sections 7 and 9 of the CPA. The first respondent plainly does ja Ai 2%71 72 73 not meet these requirements. The fact that | am before this Court in my capacity as the Presidents a result of the purported charges against me, and the bases for those charges. In the first respondent's indictment, under the summary of facts, he explains the genesis of the prosecution as being his complaint to me on 19 August 2021 about members of the NPA. Of course | have individual rights, ‘even as the President. The Constitution guarantees rights to “everyone". There is no separate Bill of rights for Presidents. | do not know what rights the first respondent has in mind for me to assert if not the individual rights guaranteed for all in the Bill of Rights. In respect gf the submission that the court cannot sanction my absence from the criminal hearing, | am advised that the order excusing me from appearing in the criminal court on 19 January 2023 and remaining in attendance is a necessary consequence of the grant of the interim interdict in paragraph 2.1 of the notice of motion against the first respondent. In other words, it follows that if the interim interdict is granted, | am excused from the hearing pending the determination of Part B. There is nothing odd or contradictory about such an order. The consequence would follow even if the order in paragraph 2.2 of the notice of motion was not granted. Once the private prosecution is interdicted in the interim, | would not be obliged by law to appear in the criminal court on 19 January 2023 and remain in attendance The harm that | will suffer is manifest, and | have demonstrated this in my founding affidavit. The long and short is that if the interim interdict is not granted, | will be forced to subject myself to an unlawful private prosecution by appearing yf 2974 75 76 before the criminal courts on 19 January 2023 and remain in attendance or face a warrant of arrest if | do not attend the criminal hearing. The first respondent's attempt to downplay this harm by suggesting that | am no different from any other President who has been hauled before the criminal courts does not answer this, issue of harm. The fist respondent in fact does not deny that| will suffer harm in various ways. All he does is — in essence ~ say that | am not exempted from these harms simply because | am the President. | am advised and respectfully submit that | would be expected to put up with any harm arising from the private prosecution if itis lawfully instituted and prosecuted. Where the institution of the private prosecution is unlawful, | am entitled in law to be protected from suffering such irreparable harm. | should add that the statements | make (cited in paras 125.1 to 125.6 in the AA) are not bald. They are demonstrated by the fact, amongst others, that the first respondent is persisting with the nolle prosequi certificates that do not relate to me and a charge against me, with the resulting consequences, unless this is interdicted. The first respondent contends that he was compelied to lodge the proceedings when he did due to the limited lifespan of the nolle prosequi certificate. The certificates had a lifespan of three months. The November nolle prosequi certificate was obtained on 21 November 2022. It expires on 21 February 2023, At the time that the first respondent launched the purported private prosecution, the November certificate was only in its first month. Elsewhere in the answering affidavit, the first respondent explains the difficulties that he faced in trying to get 3077 78 79 80 the summons issued before the end of the year. He does not explain at all what the rush was to prosecute in the face of all those difficulties if the certificate still had two months before it would expire. The first respondent provides no answer to this because there is none. ‘The obvious only answer is the timing of the private prosecution in relation to the ANC conference. The contention that the first respondent will be denied his rights under section 34 if | am permitted to “escape accountability’ in the criminal trial must similarly be rejected. The application is for an interim interdict. If Part B is decided against me, the first respondent will continue with the prosecution. | have demonstrated that | do not have any other alternative remedy. The alternatives that the first respondent proposes are either not alternatives that apply to me or are not altematives that are relevant to my case. | do not have to subject myself to an unlawful prosecution. Itis not an alternative to say that | can ‘complain at the hearing of the criminal proceedings. | have addressed the first respondent's other contentions on remedies earlier in this affidavit The balance of convenience favours the granting of the interim interdict. As | explained in my founding affidavit, there is no harm that the first respondent will suffer if the order is granted pending Part B. The suggestion in his answering affidavit that this Court will somehow be exempting me from criminal proceedings in granting the order is plainly not accurate. These are interim relief proceedings. Jalso reject, very strongly, the suggestion by the first respondent that the granting81 82 83 of the interim interdict will validate some view that there are monies exchanging hands between the CR17 campaign and members of the judiciary for my second term. It is unclear what the first respondent seeks to gain from making these allegations and on what basis he makes them. They are baseless and scurrilous. | deny further that the grant of the order will pose a separation of powers harm, or that the independence of the Registrar will be harmed. The first respondent does not say how this is so. In any event, the Registrar and all other respondents have made no such claim because there is no threat to their independence. If anything, this is a clear case where the Court must intervene. The abuse of private prosecutions is an area in which this Court is especially required to intervene to protect rights and prevent serious injustice. The prospects of success in the review application are overwhelming. | have highlighted above certain of the grounds that | rely upon in my founding affidavit. I repeat and submit that there is no real answer to them, It is unfortunate that the first respondent consistently makes unfounded allegations of some collusion between me and members of the judiciary. The first respondent once again does this in relation to a statement in my founding affidavit that was unfortunately factually incorrect in relation to the review application of Ms Karyn Maughan. In paragraph 77.5 of the founding affidavit, after explaining that the first respondent attempted to use the nolle prosequi certificate dated 6 June 2022 against Ms Karyn Maughan, | say that Ms Maughan successfully reviewed and set aside the summons purporting to charge her. The allegation that she successfully reviewed and set aside the summons was made 32in error that came about as a result of inaccurate advice that | received. | am advised that the correct position is that Ms Maughan’s application is still pending before the KwaZulu-Natal Division, Pietermaritzburg, under case number 12770/22P"1 regret the error. In this regard, | attach a confirmatory affidavit from my attorney as “RA3* | tum now to a sequential response to the first respondent's founding affidavit. SEQUENTIAL RESPONSES TO THE ANSWERING AFFIDAVIT AD PARA1 85 These allegations are admitted. AD PARA 2 86 | deny that the facts deposed to in the answering affidavit are true and correct. AD PARA3 87 | deny that the founding affidavit is defective and that my application is abusive, frivolous, and vexatious. | also deny that there is no indication that the DPP, the NPA and the Registrar will seek any involvement in Part A. The DPP and the NPA are cited as the second and third respondents respectively and they filed a notice of intention to oppose. The DPP also filed an answering affidavit. 33AD PARA4 88 89 90 | deny these allegations with the contempt that they deserve. | specifically deny that | seek preferential treatment in any way. | am entitled to approach this Court in these circumstances and have done so. | also deny that | failed to act. | detail what steps | took when | received the correspondence from the first respondent (in my capacity as the President of the Republic) on 25 August 2022. AD PARA 5 91 92 These allegations are denied. | have demonstrated in both my founding affidavit as well as elsewhere in this replying affidavit that my application meets all the requirements for an interim interdict as well as for the order that | seek in the notice of motion. The first respondent has desperately strung together certificates of non- prosecution that do not pertain to me, so that he can, at all costs, drag me to court for an ulterior purpose. That conduct is at best abusive of both the office of the President and the courts. Permitting that kind of behaviour would drain the public's confidence in our judicial system AD PARA6 yu93 | deny the allegation that my application stands to be dismissed or to be struck off the roll. | also deny that the first respondent has set out any basis for the Punitive costs order that he seeks against me. AD PARAT I deny that | lack the requisite locus standi to bring this application in my official capacity and title as President. The letter that was addressed to me requesting me to intervene in the so-called contravention by Mr Downer SC and Ms Karyn Maughan was addressed to me in my capacity as the President of the Republic and not in my capacity as a private individual and/or citizen. It is therefore surprising that the first respondent should allege now that I have no /ocus standi to act in the capacity as President of the Republic. This is a further demonstration of the first respondent's abusive disposition, AD PARA8& 95 | deny that | have exhibited in any manner a dismissive and contemptuous attitude towards the first respondent's unlawful and invalid private prosecution summons against me. | have always maintained that the first respondent's ‘summons fail to meet the jurisdictional requirements for a private prosecution as set out in the CPA. | have explained the reason for this in both my founding affidavit and in the introductory sections of this affidavit AD PARAS 8.1 and 8,2 35 AwH96 These allegations are denied. The private prosecution summons on which the first respondent relies to assert that | am a criminally charged person are unlawful and invalid. AD PARA 8.3 97 | note the first respondent's insistence that | appear in the criminal court on 19 January 2003. | also note his threat to have a warrant of arrest issued against me. As | have explained in both my founding affidavit as well as in the introductory sections of this affidavit, the summons on which the first respondent relies for his insistence that | am duty bound to appear in the Criminal Court is defective, invalid, and unlawul. His insistence that | must appear inthe criminal court without variation (even by a court order) discloses his true purpose for having issued the defective summons against me. AD PARA 8.4 98 | deny that | am mentioned in the docket as a suspect and/or an accused person as this sub-paragraph suggests. There was for that reason no basis at all for the first respondent to interpret the two nolle prosequi certificates issued by the second respondent as also relating to me. AD PARA8.5 99 | deny that | was in any way an accessory after the fact in the contravention of section 41(6) read with section 41(7) of the NPA as alleged. Ay /100 tis notable that the nolle prosequi certificates on which the first respondent relies for my private prosecution relate to crimes that were committed on 9 August 2022. On his version, which is denied, | was an accessory after the fact long after that date; and after 25 August 2022. It therefore cannot be that a nolle prosequi certificate that relates to a crime committed on 9 August 2022 could also be applicable to me where it is alleged that | committed the offence after 25 August 2022. For the DPP to issue a certificate of non-prosecution, it must have investigated and taken the decision to not prosecute. Itis clear from the certificate itself that the decision not to prosecute was in relation to the alleged crimes committed on 9 August 2022. The prosecution authorities have never taken such a decision in relation to me. AD PARAS 101. I deny the propositions that are set out in paragraph 9, read with paragraph 8 of the first respondent's answering affidavit AD PARA 10 102 | deny that Part A of my application stands to be decided on the basis of the Plascon-Evans rule. There is nothing in the first respondent's answering affidavit which would justify such a determination and/or decision by this court. 103 Part A of my application is for an interim interdict. | also deny that there are material disputes of facts so as to warrant the application of the Plascon-Evans principle. On common cause facts and/or indisputable facts, the nolle prosequi 37 AMH104 certificates on which the first respondent seeks to place reliance simply do not apply to me. That is not a factual issue but an interpretation of the certificates and the law. If anything, the NPA (which includes the DPP) has issued a statement to say the certificates do not apply to me. In any event, at interim relief stage, the court is guided by the following principles [set out by this Court Air France-KLM S.A and Another v SAA Technical SOC Ltd and Others at para 14 [(52406/2016) 23 September 2016] in determining whether the interim relief sought should be granted:- “The requirements that need to be satisfied in a matter such as the present are as follows. First, there must be a prima facie right, although open to some doubt, on the part of the applicant; second, there must be @ well- grounded apprehension of irreparable harm if interim relief is not granted and final relief is ultimately granted; third, the balance of convenience must favour the granting of interim relief; and fourth, there must be no other ordinary remedy that is available (o give adequate redress to the applicant. Where there are factual disputes, the facts set out by the applicant must be taken together with any facts as set out by the respondent which applicant cannot dispute and the court must consider whether, having regard to the inherent probabilities, the applicant should on those facts obtain final relief. The_facts_set_up_in_contradiotion by the respondent then fall to be considered. An applicant upon whose case serious doubt is thrown cannot succeed in obtaining temporary relief_if a well-grounded apprehension of itreparable harm is established, in the absence of an adequate ordinary remedy, the court is vested with a discretion which will usually resolve into a consideration of prospects of success and the balance of convenience. The stronger the prospect of success, the less need for such balance to favour the applicant. (own emphasis) 105. | am further advised that this Court is entitled at the interim relief stage to peek into the grounds of review raised in the main review application and assess their strength. Once this is done this Court will conclude that the review is likely to succeed and that the interim interdict may be granted. {| 38 » AMH 7 “AD PARA 11 106 The structure of the first respondent's answering affidavit is noted. AD PARAS 12 - 19 107 In the commissioning of the founding affidavit, the commissioner of oaths inadvertently omitted to provide certain information that he was required to provide in terms of the regulations governing the administration of oath or affirmation. That mistake has since been rectified and the relevant information was provided by the commissioner of oaths who commissioned my founding affidavit. In light of the rectification of the mistake and its explanation on affidavit, there should have been no point taken with respect to the form of my founding affidavit and/or its commissioning. In any event, the omissions complained of did not render the application void. AD PARAS 20 - 42 108 | deny that this court lacks the requisite jurisdiction and the power to decide Part ‘A (and Part B) of my application. | have explained in the introductory sections of this affidavif that the first respondent has clearly misconstrued the basis on which this court has been approached for both Part A of my application which is an interim interdict as well as Part B of my application which is a review. 109 The first respondent has exclusively placed reliance on the averment in my founding affidavit that the summons was issued for an ulterior purpose. While fie110 414 thatis one of the review grounds under Part B, | also seek to review the issuance of the summons for my private prosecution on the basis that those summonses do not meef the jurisdictional requirements set out in section 7 of the CPA. There are thus two pillars to Part B of my application. 109.1 the first relates to the fact that the private prosecution summons do not meet the jurisdictional requirements of section 7 of the CPA; and 109.2 the second is that the summons were issued for an ulterior purpose. The cases on which the first respondent relies concern prosecutions by the prosecuting authority. In those cases, the accused persons in the criminal proceedings complained that their prosecutions were premised on an improper motive andior ulterior purpose. Those cases are immediately distinguishable from the instant application on the basis that in those cases the court was never invited to consider whether a civil court has jurisdiction to stay criminal proceedings where a party seeks to invoke section 7 of the CPA but without having met the requirements of that provision. In other words, the competence atall of those prosecutions never arose. Here, it does. The case is that the first respondent is not entitled to institute private prosecution proceedings against me, because he has not complied with the provisions of the CPA. The ground of ulterior purpose will be determined by the review court. It does not have to be determine at this interim relief stage under Part A. AmuAD PARA 43 112 I deny that Part A of my application is not urgent. | said in my founding affidavit that this application is urgent for the following reasons: 112.4 My constitutional rights to human dignity, equal protection of the law, personal freedom, including of movement, and security of the person and fair trial willbe irreparably breached and harmed. In terms of the summons, J am required to attend and remain in attendance in the criminal court from 19 January 2023 in connection with the charges in the summons. The operation of the summons limits my freedom of movement and impacts on my personal liberty, and it does so without any lawful basis. | add that that movement also involves my attending to international obligations as President of the Republic. This is inherently and seriously prejudicial both to my person, as well as to the Republic and its citizens. 112.2 The issuance of the private prosecution summons (unlawful and invalid as. they are) amounts to my harassment at best. This has serious consequences for the confidence of the public in the office of the President, as well as for the economy. 112.3 | repeat what | have stated in the founding affidavit and in the sections of this affidavit above in support of urgency. 41AD PARAS 44 - 45 113 114 115 | admit that | received the unlawful summons on 15 December 2022. | also admit that the application presently before court was served on the first respondent on 27 December 2022. | however deny that | engaged in futile correspondence between 15 December and 27 December 2022 The correspondence addressed to the first respondent was in an attempt to avoid approaching this court on an urgent basis. The first respondent was seeking to prosecute me privately on the basis of unlawful and invalid summons. | sought to avoid having to come to court urgently by pointing this out to him. A litigant in urgent proceedings who engages the other party in an effort to avoid coming to court cannot be penalized on the grounds of urgency. ‘As appears from the correspondence discussed in the founding affidavit, it was plainly accepted that the summons issued on 15 December 2022 were defective or that their issuing was defective, The first respondent's attorneys suggested a conditional withdrawal of the summons. They would withdraw the summons and re-issue them after attempting to correct the defects identified by my attorneys. My attorneys rejected the proposed unconditional withdrawal of the summons and demanded an unconditional withdrawal because the summons is defective at root and the defects cannot be cured. Instead of the first respondent's attorneys withdrawing the summons, they opted to issue the second summons It is clear from the first respondent's answering affidavit that the second summons is relied upon in the unavailing hope of curing the underlying invalidity of the summons. Au oO116 What is clear is that the correspondence by my attorneys was reasonable to avoid these urgent proceedings. The first respondent took steps pursuant to that correspondence to try to cure the defects in the summons. The correspondence was self-evidently not futile. It is also the basis for the punitive costs order because the first respondent persists in the private prosecution despite the glaring invalidity of the summons. AD PARAS 46 - 514 117 118 | deny that the urgency of this application was premised on the ANC elective conference, as alleged. The reasons why this application is brought on an urgent basis are sat out in my founding affidavit and | do not wish to repeat them here. | have merely traversed them in the paragraphs above. The constant refrain to the ANC elective conference (and the step-aside rule) indicate the naked reason for why the first respondent instituted the private prosecution summons against me when he did ~ on 15 December 2022. That alone, however, does not found urgency for me In any event, as explained above and as appears clearly from the passages in the first respondent's answering affidavit quoting from the provisions step aside rule and guidelines, the step aside rule remains relevant for as long as | am required to appear before the criminal court and remain in attendance to be prosecuted. There could be demands that 1 must step aside from my elected position as President of the ANC and President of the Republic. | am entitied to be protected from such demands premised on an unlawful private prosecution 43 hun119 | also deny that | elected to engage in frivolous correspondence rather than to institute urgent proceedings. The reason for my engaging in correspondence with the first respondent was in an attempt to avoid having to approach this court on an urgent basis. | repeat what | have stated above in this regard 120 Save as aforesaid, the balance of the allegations in these paragraphs are denied to the extent that they are inconsistent with what | have stated in the founding affidavit and in this affidavit AD PARA 52 121 | deny these allegations. It is not clear to me what legal position the first respondent is referring to, as well as what legal steps he alleges to have suggested to me. The first respondent attaches no correspondence to corroborate*these allegations. | therefore deny them. AD PARA 53 122 | am unable to make sense of the allegations in this paragraph. | therefore deny them. AD PARA 54 123 The allegations in this paragraph are denied. The first respondent is being disingenuous to suggest that he simply sought to supplement the summons in order to gef‘over an impasse. It must have been apparent to the first respondent fete124 that the nolle prosequ/ certificate on which he sought to rely for the first set of summons was simply not applicable to me. On the face of it that nolle prosequi certificate was issued on 6 June 2022 and it applied to Mr Downer SC. It had expired by the time the summons were issued against me. Instead of accepting that and withdrawing the summons without more as my legal representatives invited him to do, he served on me another summons but this time attaching not the Mr Downer SC’s nolle prosequi certificate but another nolle prosequi certificate which was issued in November 2022 and which does not apply to me either. | have meticulously explained this in the introductory Paragraphs to this affidavit. It might be so that the first respondent chooses to refer to the 21 December 2022 summons as supplementary but in substance the two sets of summonses are virtually identical, There is no supplementation between the two summonses. AD PARA 55 125 The suggestion made in this paragraph that | remained supine for seven days instead of launching legal proceedings is at best malicious. The first respondent was given until 21 December 2022 to withdraw without more his invalid and unlawful summons. Once it became apparent that he had no intention to do so, linstructed my legal representatives to commence the drafting of court papers to institute these proceedings.AD PARA 56 126 | admit that this application was served on the first respondent on 27 December 2022. The representation by the first respondent that this application took him by surprise is untrue and misleading. 127 The first respondent was forewarned in the letter sent to him by my legal representatives that should he not withdraw the unlawful summons without more, | would be Jeft with no choice but to institute these proceedings on an urgent basis. He therefore ought to or did anticipate such an application. AD PARA 57 128 The allegations in this paragraph are confusing and therefore denied. In terms of the notice of motion, the first respondent was required to file a notice of intention to oppose if any on 28 December 2022. It is not correct that he was required to file an answering affidavit on 28 December 2022 as alleged 129. The notice of motion required the first respondent to file his answering affidavit on 3 January 2023. | must point out that instead of delivering an answering affidavit the first respondent delivered a letter in which he contemptuously stated that he would not be filing an answering affidavit. That affidavit was only filed on 6 January 2023. In the circumstances, the first respondent has absolutely no 46basis whatsoever to complain about the time periods that he was given to file opposing papers. AD PARA58 ~ 130 | deny that the date of hearing of this matter namely, 10 January 2023, is in the middle of holidays. It is unclear to me what holidays the first respondent refers to. Atany rate, court schedule contemplates that there may be instances in which litigants may need to approach the court on an urgent basis. For that reason, provision has been made for there to exist urgent court rolls. In any event, this, matter will be heard on 12 January 2023 pursuant to the directions issued by this, Court, Those directions also adjusted the time periods for the filing of further process. AD PARA 59 131 These allegations are denied. | have in my founding affidavit provided a full basis for why | am entitled to approach this court on an urgent basis. | do not wish to repeat those reasons here. AD PARA 60 182 | deny these allegations. | specifically deny that 1 am seeking to receive preferential treatment from this or from any court. | have every right to approach this Court and to put my case before it. That is precisely what | have done. 47 AweAD PARAS 61 - 62 133 | deny the suggestion in this paragraph that my grounds for urgency are not cogent and/or that they are not persuasive. AD PARA 63 134 I deny again that | have not set out with sufficient particularity the basis for why my application is urgent. In the founding affidavit, | specifically set out under the rubric of no alternative remedy the reasons for why | would not be afforded substantial redress in due course. AD PARA 64 135. The allegations in this paragraph are denied. The first respondent takes umbrage to my contention that the timing of the summons namely, 15 December 2022 had as its sole motivation my disqualification for re-election as ANC President. That . is in part why | say that the private prosecution summons were issued for an ulterior purpose. 136 While that is, it is telling that the first respondent has decided that the only ba: on which my application could be urgent would be if it was pinned to the ANC conference which was held in December 2022. It is clear therefore that the only reason for why he issued summons against me when he did in circumstances when he could have done so in January 2023 (after the “holidays”) was to attempt to secure my non-election as ANC President at the conference. At any rate, and 48 fog tas | set out in my founding affidavit, the urgency of this application is not premised on, and was never premised on the ANC’s elective conference. That would have been the first respondent's desired outcome, but it was unfortunately for him not so. AD PARA 65 137 138 The allegations in this paragraph are denied. Again, | provide fully the reasons for why I seek an interdict in Part A from this court before 19 January 2023. There is no reasog why | should be expected to appear in criminal proceedings that are simply unlawful on 19 January 2023 and to remain in attendance to be criminally prosecuted. | have fully explained this position both in my founding affidavit as well as in this affidavit. Ihave also explained above that the harm on which my application for an interim interdict is partly predicated will materialise on 19 January 2023 if the relief | seek is not granted by this Court. | will be compelled to appear as an accused and remain in attendance in an unlawful private prosecution that bears absolutely no prospects of success at the review. I cannot obtain substantial redress on 19 January 2023 or thereafter because my right not to be subjected to an unlawful private prosecution will be irreparably and/or irreversibly harmed. AD PARAS 66 - 67 139 Save to deny that | seek preferential treatment, | have no knowledge of the allegations in these paragraphs and can accordingly deny them AmeAD PARA 68 140 | deny that this application is not urgent. AD PARA 69 141 The allegations in this paragraph are denied. The first respondent obviously misses the main basis on which my review application is predicated. The entire private prosecution process that the first respondent has set afoot is unlawful and must be set aside. AD PARAS 70, 72 AND 74 442. The allegations made in these paragraphs are self-serving and denied. Its clear from the first respondent's answering affidavit that the private prosecution summons was served on me on 15 December 2022 to coincide with the ANC elective conference. That was by design. The first respondent's complaint that he could not find a sheriff at that time of the year to serve summons on me is an own goal. On the one hand, he complains of des non that typically would fall in that period. But on the other, he sought to serve summons on me in circumstances where he could have waited to serve them in January 2023 and before the defective nolle prosequi certificates on which relies would lapse. On his version, the certificates would lapse on 21 February 2023. There was thus no other reasen for his insistence that | be served with the summons on 15 December 2022, but for the fact that that coincided with the ANC elective conference. fmtAD PARA 73 143 | admit the evidence | gave to the Zondo Commission. | have no knowledge of the remaining allegations in these paragraphs and accordingly deny them. AD PARA 75 144 These allegations are denied. | have demonstrated ad nauseum both in my founding affidavit as well as in this affidavit why | satisfy the requirements for an interim interdict. | have also explained why | would suffer irreparable harm if | were required to attend criminal proceedings that emanate from unlawful and invalid summons. AD PARA 76 145 The constant refrain’ to what the Supreme Court of Appeal, as well as the Constitutional Court have held in relation to ulterior purpose misses the point. My application under Part B is premised on two pillars. The first is that the jurisdictional requirements for a private prosecution under section 7 of the CPA have not been met. The second pillar is that the summons was issued for an ulterior purpose. AD PARA 77 146 These allegations are denied. The first respondent will have his access to court if the court does not agree with me that the private prosecution summons are . /} / eH AL *147 unlawful and invalid. But the rush to court on the basis of unlawful and invalid ‘summons can never be what the Constitution intended with the rights in section 34, To the contrary, | have a right not to be subjected to unlawful criminal proceedings. The prosecuting authority has not applied its mind to whether or not it would prosecute me for the charges alleged in the summons. The nolle prosequi certificates are for alleged crimes that were allegedly committed on 9 August 2022. The approach by the first respondent undermines not only the CPA, but the Constitutional arrangement itself. The outcome of that would be to subject me to unlawful proceedings, and section 38 of the Constitution requires this Court to come to my aid where such circumstances are present. | have referred to other relevant provisions of the Constitution in this regard. AD PARA 78 148 These allegations are denied. | deny specifically that | am incorrectly utilizing public resources in the form of the office of the State Attomey. The alleged crime that | supposedly committed flowed from a letter that was addressed to me by the first respondent in my capacity as President of the Republic. For that reason, | was entitled to rely on the services of the office of the State Attorney. It is quite telling yet again that the first respondent characterizes the issuing of the summons and his private prosecution of me as an ANC matter. That does no less than to disclose the true purpose for which he instituted the proceedings against me. | also deny that my approaching this court is second to less costly altematives. It was open to the first respondent to withdraw his unlawful and / 52 Arg / Jinvalid sumfnons against me, but he refused to do so unequivocally. Withdrawing them would have been less costly because it would have avoided these proceedings altogether. AD PARA 79 149. | deny the allegations in this paragraph. | have already provided cogent reasons for why | will not be afforded substantial relief in due course. There is no such redress available in due course because irreparable and irreversible harm would already have been caused. AD PARA 80 - 83 150 These allegations are denied. In any event, this kind of argument is at best uninformed and thus unhelpful. But for what it is worth, markets and investments are affected by situations where there may be doubts about a President's position. AD PARA 84 151 These allegations are denied. AHAD PARA 85 152 These allegations are denied, for all the reasons that | have provided in this affidavit as well as in my founding affidavit, | specifically deny that there is any basis for a punitive cost order against me. AD PARA 86 153. The allegations made in this paragraph are disingenuous and therefore denied. The first respondent specifically stated in correspondence to my attorneys that he would not be filing an answering affidavit. This was long after a case number was provided to him. That correspondence was dated 3 January 2023— the day on which his answering affidavit was expected AD PARA 87 * 154 | deny that there is any merit in this ground of objection to my application. AD PARA 88 155 | must point out that the selective reliance on paragraph 37 of the SCA decision in NDPP v Zuma 2009 (2) SA 277 (SCA) could be misleading. The full text of that paragraph is this: “The court dealt at length with the non-contentious principle that the NPA must not be led by political considerations and that ministerial responsibilty over the NPA does not imply a right to interfere with a decision to prosecute (para 88 et seq). This, however, does need some contextyflisation. A A L/ Ami Ql 54prosecution is not wrongful merely because it is brought for an improper purpose. It will only be wrongful if, in addition, reasonable and probable grounds for prosecuting are absent, something not alleged by Mr Zuma and which, in any event, can only be determined once criminal proceedings have been concluded. The motive behind the prosecution is irrelevant because, as Schreiner JA said in connection with arrests, the best motive does not cure an otherwise illegal arrest and the worst motive does not render an otherwise legal arrest illegal.” 156 | am advised that that passage pre-supposes prosecution that was properly instituted _in_ terms of the law. That case, as | have said elsewhere, is distinguishable from the instant, where as a matter of substantive and procedural law, the first respondent's summons does not get me into the criminal court at all. It would be a travesty of justice and a violation of my constitutional rights if | were required to appear and participate to the very end in criminal proceedings that are unlawful at root. Further submissions on this will be made at the hearing of this matter. AD PARA 89 157 The allegations in this paragraph are denied. | deny specifically that there are reasonable and probable grounds for my private prosecution by the first respondent. AD PARA 90 158 These allegations are denied. | have already explained both in my founding affidavit as well as in the introductory parts of this affidavit why | had’no other 55, Amchoice but to approach this court on an urgent basis. The first respondent makes ‘a meal about the fact that this application was issued over the festive period. The first respondent was himself the author of that, for two reasons. The first is that he elected to serve me with the unlawful summons on the brink of the festive season and declined my invitation to withdraw the summons. The second is that it was always open to the first respondent to institute the purported private prosecution after the festive period but before the nolle prosequi certificate on which he relies (ignoring for a moment the fact that they do not apply to me) expires in February 2023. However, he elected to force through and serve unlawful process on me at the start of the festive period. The first respondent can therefore not have his cake and eat it AD PARA 91 159 | deny that | should be made to attend and participate in the unlawful criminal proceedings AD PARA 92 160 | deny that my application ought to be struck off the roll. No proper case has been made out for that kind of prayer. AD PARA 93 161 I deny the allegations in this paragraph to the extent that they suggest that there is one law that applies only to me and to no other citizens of the Republic of 56 uu‘South Africa. | do not know which recent judgment the first respondent is referring to and can therefore not comment on it. | must point out that the judgments that the first respondent refers in his answering affidavit in relation to the defence of ulterior purpose were all prosecutions of him by the prosecuting authority and not by a private citizen. Here the threshold is higher in that the law itself contemplates that a private citizen seeking to privately prosecute another ought to satisfy certain jurisdictional requirements before such prosecution can take off the ground at all AD PARA 94 162 163 The first respondent mischaracterizes the nature of my application both in Part A as well as Rart B. | therefore deny the allegations made in this paragraph, My application is not at all predicated on the DPP’s decision to issue a certificate of non-prosecution. As | have explained in my founding affidavit, the purpose of Part B of my application is to review and set aside the summons issued by the first respondent on the basis that those summonses do not satisfy the jurisdictional requirements set out in section 7 and.9 of the CPA. Should this court find the certificates of non-prosecution on which the first respondent relies, for his private prosecution of me relate to me, then my challenge in Part B is on the validity, not the issuance of those certificates in as far as they could be interpreted to apply to me. That is an application wholly detached from a challenge to the DPP’s decision not to prosecute.AD PARA 95 164 The allegations made in this paragraph are based on a misunderstanding of the nature of my application before this court. They are therefore denied ADPARAS6 . 165 The allegations made in this paragraph are denied. | must observe again that the first respondent misconstrues the nature of my challenge in Part B. The crux of the case as | have said ad nauseum is that the private prosecution of me in the criminal court ought not to be permitted, simply because the CPA has not been complied with. Not only is there no nolle prosequi certificate that applies to me, there is also no security paid, as is required by the CPA AD PARA 97 166 These allegations are denied. AD PARA 98 167 I deny that any part of my application before this court is premature. AD PARA 99 168 The allegations made in this paragraph are denied.© AD PARAS 100 - 108 169. The allegations made in these paragraphs have no merit and are denied, Section 179 of the Constitution provides that: “179 Prosecuting authority (1) There is a single national prosecuting authority in the Republic, structured in terms of an Act of Parliament, and consisting of- (a) @ National Director of Public Prosecutions. who is the head of the prosecuting authority, and is appointed by the President, as head of the national executive; and (b) Directors of Public Prosecutions and prosecutors as determined byan Act of Parfiament.” (own emphasis) 170 It is therefore sufficient that | joined the National Prosecuting Authority to these proceedings. In any event, the DPP that issued the certificates of non- prosecution is before court. AD PARA 109 171. | deny that the relief I'seek in Part A of this application is dressed-up as anything but what it purports to be. It is incorrect that the relief | seek is in substance a final interdict. My application is clear that the relief is sought pending the determination of Part 8 which challenges the legality of the summons issued by the first respondent against me, alternatively the summons and the nolle prosequi certificates if they are found to relate to me. Ara 7 +AD PARA 110 172. These allegations are denied. AD PARAS 111-115 173 | deny that the OUTA principle applies to the first respondent. | have explained the position, to the extent that the OUTA principle is, capable of applying to the second and to the fourth. The contentions advanced have no merit. AD PARA 116 174 These allegations are denied. AD PARAS 117-119 175 These allegations are denied. 176 The first respondent obfuscates matters. The difficulty with his purported private prosecution, which breaches my constitutional rights, is that itis invalid and does not get out of first base. That is a different inquiry to the issue of an ulterior purpose. The first respondent is not entitled to deliberately bring invalid private prosecution proceedings to court and insist on being granted access to court. That makes a mockery of the judicial system. The process on which he has embarked is defective because: (a) there is no nolle prosequi certificate that 60 yuapplies to me, and (b) there has been no security paid. | have explained these above and repeat what | have said. AD PARA 120 177 These allegations are denied. 178 | was charged in my capacity as the President, but | am the bearer of that office. Nothing about being an office bearer negates the rights that are bestowed on all persons in the Bill of Rights. AD PARAS 121 - 122 179 These allegations are denied. The provisions quoted from the CPA contemplate a lawful indictment. AD PARA 123 180 | deny that I have failed to establish a prima facie right. AD PARAS 124 - 133 181 | deny these allegations. The first respondent's private prosecution summons are unlawful and invalid. Those summonses require me to attend and remain in attendance at court on 19 January 2023. That | be required to subject myself to unlawful summons will cause me harm, both in my capacity as a citizen of this 61country with rights, as well as the President of the Republic with obligations. All of these considerations obviously do not matter to the first respondent, who has gone through great lengths to abuse court process for what appears clearly to be personal or ulterior purposes. AD PARAS 134-142 182. These allegations are denied. The first respondent's summons is unlawful. | have already explained that | cannot obtain substantial redress on 19 January 2023 or thereafter because my right not to be subjected to an unlawful private prosecution will be irreparably and/or irreversibly harmed. The cases on which the first respondent relies presupposed lawfully instituted criminal proceedings. This is not the case here. AD PARAS 143 ~ 152 183 | deny these allegations. | have demonstrated clearly that the balance of convenience is in favour of granting the interim interdict. The first respondent's summons will be set aside on review -- they are bad in law. There is thus no reason why | should be subjected to an unlawful process. AD PARAS 153 - 156 184 I deny that Part B of my application has no prospects of success. 62185. It is undeniable that the nolle prosequi certificates on which the first respondent relies do fot apply to me. For that reason, the first respondent's private prosecution summons do not get out of first base. But that is not all. The CPA requires the first respondent to pay security. There has been no evidence placed before this Court that such security was paid before the summons was issued. AD PARAS 157 - 159 186 | deny that | get informed about the outcome of cases before time, 187 | have explained above that the allegation in paragraph 77.5 of the founding affidavit was made in error based on erroneous legal advice. | regret the error. 188 | attach hereto a confirmatory affidavit by my attorney of record, Mr Herbert Mneube. AD PARAS 160-162 189 | deny these allegations. AD PARA 163 190 | deny these allegations. | have already explained the position here and do not wish to repeat myself.AD PARA 164 191 | deny these allegations. AD PARA 165 ~ 192. I deny these allegations. The first respondent does not say on what basis a court would deciine an interim interdict when all the requirements are satisfied. | am advised and respectfully submit that the overriding criteria is the interests of justice. In this case the interests of justice require the grant of the interim interdict sought in order to prevent a serious injustice and serious breach of constitutional rights. Further submissions will be made at the hearing of the application in this regard AD PARAS 166 - 173 193 | deny these allegations. | am advised that they are, in the circumstances of this case, not an accurate exposition of the law. Given that the summons on which the first respondent relies are invalid and abusive (at best), it would be in the interest of justice for this Court to grant the interim interdict sought. AD PARAS 175 - 176 194 | deny these allegations. | have already pointed out that the first respondent's insistence that | was indicted in my personal capacity is at best abusive. | .195 thetorically ask how that can be so if the letter he addressed to me in August 2022 was for me to intervene in my capacity as President of the Republic. | note the first respondent's complaint about the State Attorney's involvement in this matter. | am advised, however, that the first respondent has not served a notice in terms of rule 7 of the Rules of this Court. Even if the first respondent had served such a notice, his contention would still fail. | am advised and respectfully submit in this regard that the State Attomey is authorised to represent me because | am purportedly criminally responsible for failure to act in my official capacity as President of the Republic. It is obvious that the first respondent would never have requested me to investigate his complaints in my private capacity and not as President. Further submissions will be made in this regard at the hearing of the application. AD PARA 179 196 197 These allegations are denied. The two certificates cannot be read together. At the very least, and as | have said above, the certificate that relates to Mr Downer SC has expired. At any rate, and out of an abundance of caution, the first respondent is hereby notified that | will cause an amendment to my notice of motion under Part B to challenge that both the November 2022 and the 6 June 2022 nolle prosequi certificates apply to me or that they are invalid if they are found to relate to me. The grounds for the challenge are set out in the founding affidavit and will be . HY 6 AM Lj-supplemented to the extent necessary after receipt of the records of proceedings under Rule 53. AD PARA 180 198 | deny that there has been a non-joinder or a misjoinder. | repeat what | have stated above in this regard. AD PARAS 183 - 186 199 | deny those allegations. At any rate, the 21 December 2022 summons was invalid and ought not to have been issued. AD PARA 187 - 189 200 | deny these allegations. AD PARA 190 201 | deny these allegations. AD PARA 191 202. These allegations are simplistic and denied. | have already explained the correct position AD PARAS 192-193 a \ 66 AmH203 These allegations are denied. AD PARAS 194 196 204 These allegations are to the extent that they are inconsistent with what | have stated in the founding affidavit and in this affidavit, are denied, 205 | deny that it is sufficient to attach any nolle prosequi certificate. The CPA requires that an appropriate and applicable nolle prosequi certificate be issued. The certificates on which the first respondent relies do not apply to me. AD PARAS 197 - 206 206 These allegations are denied. There is nothing in the correspondence that the first respondent provides to show that the requirement of security was complied with. Section 7 and 9 of the CPA is clear: there must be a nolle prosequi certificate, and the payment of security. 207 Itis telling that in the summons, the first respondent represents that he paid the security, but never in fact attached proof of such payment. There is not even an affidavit from his attorneys of record to confirm (by attaching proof) that such security was in fact paid, AD PARAS 207 - 208 208 These allegations are denied 67 AMH209 The first respondent does not take this Court into his confidence to explain why he did not seek to instruct other counsel. He has used the services of different advocates in the past. AD PARAS 209 - 220 210 These allegations are denied. | deny specifically the first respondent's insistence that the certificates of non-prosecution on which he relies apply to me. | have already pointed out that the NPA, said in a statement that the certificates do not apply to me. And they can't, as a matter of law. The certificates, as | have explained above, concern an alleged crime committed on 9 August 2022. | was not aware of such a crime at the time (on the first respondent's admission) and could therefore not have committed any crime on 9 August 2022. | only became aware of the first respondent's complaint when he addressed a letter to me, in my capacity as President of the Republic, on 25 August 2022 211. Ideny any atlegations that are inconsistent with what | have stated in the founding affidavit and in this affidavit | am advised that contentions of law will be addressed in argument at the hearing of the application, AD PARAS 221 - 222 212 These allegations are denied. 213 Reference to paragraphs 17 — 19 of ‘JZP6" is unhelpful. Paragraph 17 reads: 68“The alleged conduct also forms part of separate investigations which are conducted by the President of the Republic of South Africa, Mr Cyril Ramaphosa, the Minister of Justice, Mr Ronald Lamola, and/or the Legal Practice Council..." 214 Nothing in that paragraph or the paragraphs that follow suggest at all that | was a suspect or faced any charge, including a charge as an accessory after the fact or for defeating the ends of justice. It is clear that |, together with the Minister of Justice andthe Legal Practice Council, were requested to investigate. AD PARAS 223 - 228 215 There is no basis provided for these allegations. They are therefore denied. AD PARA 229 216 | deny that there is in substance a difference between the two summonses. AD PARA 230 217 These allegations are denied. AD PARA 231 218 These allegations are denied. 69 AuxAD PARAS 232 - 233 219 These allegations are denied. 220 | note that there is no allegation that | leaked the first respondent's medical records. The only allegation on the papers is that | was requested to investigate. The first respondent refers this Court to the relevant sections of “JZP6" where this is stated AD PARA 236 221 These allegations are denied. + AD PARA 237 222 These allegations are denied. The first respondent does not understand how the scheme of the CPA operates. Nor does he understand the very certificates of non-prosecution in his possession. AD PARA 238 223 Thesé allegations are denied. AD PARA 239 - 241 224 These allegations are denied A 70 | AMH “225 226 | specifically deny that the documents attached evidence or prove the payment of the requisite security The first respondent ought to have paid security prior to issuing the summons He has not proved that he did so. He has still not proved this to-date. He now complaints that | ought to have raised this issue in correspondence, But itis the first respondent that wishes to privately prosecute me. For this to happen lawfully itis he who must comply with the applicable statutory requirements. AD PARA 242 ~ 244 227 These allegations are denied. | have already stated above that the nolle prosequi certificate that pertains to Mr Downer SC has expired. AD PARAS 245 — 246 228 Section 84(2)(f) of the Constitution empowers me, as President to apoint a commission of inquiry. There is nothing in law that renders the non-appointment of such a commission on the dictates of a citizen a crime. In any event, the issue that the first respondent wants me to appoint a commission for was before the court. He confirms that he instituted private prosecution proceedings against ‘Advocate Downer SC and Ms Maughan. It would be in breach of the law for me to institute a commission on inquiry in parallel with court proceedings, for the purpose of investigating matters that are before the criminal courts and must be determinedsby those courts, The first respondent ought to know this. A n A AmMH / | ;AD PARA 247 229 I deny that | engaged in a collateral challenge that the law does not permit. The challenge before this Court is a direct one under Rule 53, PAJA and the rule of law. It is accompanied by an application for an interim interdict pendente lite. This is legally permissible. . AD PARAS 248 - 249 230 These allegations are denied. AD PARA 252 231 The second respondent misconstrues the basis on which | am before this Court. | deny that there is an alternative remedy available to me. AD PARAS 253 — 254 232 These allegations are denied. | have provided the basis for such denial above. AD PARAS 258 - 259 233 These allegations are denied. WHEREFORE, | pray for an order as set out in the Notice of Motion against the first respondent.MATAMELA CYRIL RAMAPHOSA hereby certify that the deponent knows and understands the contents of this affidavit and that it is to the best of the deponent’s knowledge both true and correct. This affidavit was signed and sworn to before me at_zeé Yea’ __on this the 70 day of January 2023, and that the Regulations contained in Government Notice R.1258 of 21 July 1972, as amended by R1648 of 19 August 1977, and as further amended by R1428 of 11 July 1989, having been complied with, A COMMISSIONER OF OATHS * Ls FulNames: ALEC Mowué Heie/ce- Capacity: CAAT Address: /2/ (lem! SIR (AWE Tow PRESIDENTIAL PROTECTION SERVICES WESTERN CAPE 7 # ToUAN as Frawvare sna xs WESTER [SOUTH AFRICAN ‘OLIGE SERVICE 73