IN THE HIGH COURT OF SOUTH AFRICA KWAZULU-NATAL DIVISION, PIETERMARITZBURG In the matter between: KARYN MAUGHAN and JACOB GEDLEYIHLEKISA ZUMA CAMPAIGN FOR FREE EXPRESSION MEDIA MONITORING AFRICA TRUST ‘SOUTH AFRICAN NATIONAL EDITORS’ FORUM DEMOCRACY IN ACTION NPC and Inthe matter between: WILLIAM JOHN DOWNER and JACOB GEDLEYIHLEKISA ZUMA ‘THE HELEN SUZMAN FOUNDATION CASE NO. 12770722P Applicant Respondont First amicus Second amicus Third amicus Fifth amicus CASE NO. 13082/22P Applicant Respondent Fourth amicus‘ORDER A: Case No: 12770722P 1. The summons issued out of the KwaZulu-Natal Division of the High Court, Pietermaritzburg on 5 September 2022, under case number CC52/2022P, for the purpose of instituting a private prosecution against the Applicant by the Respondent is set aside, 2. The Respondent is interdicted and restrained from einsituting, proceeding with, or from faking any further steps pursuant to, the private prosecution referred to in paragraph 1 3. The costs of ths application are to be paid by the Respondent on an attorney and own client scale, such costs to include the costs of two counsel where so employed. B: Case No: 13062/22P 1. The summons, by which the Respondent instituted a private prosecution of the ‘Applicant in this court in Case C052/2022P, is set aside. 2. The Respondent is interdicted from pursuing any private prosecution of the ‘Applicant on substantialy the same charges as those advanced in the ‘summons set aside, 3. The Respondent is ordered to pay the Applicant's costs on the scale as between attorneyand own client, such costs t include the costs of two counsel where so employed. JUDGMENT COURT (KRUGER J, HENRIQUES J et MASIPA J) duction [1] Inboth Case Nurber 1270/22P and Case Number 13062/22P, the Applicants, Karyn Maughan (Maughan) and Wiliam John Downer (‘Downer’) respectively, seek the following orders3 (2) the setting aside ofthe summons under case number CC52/2022P issued out Of the KwaZulu-Natal Division of the High Gout, Pietermartzburg, on 5 ‘September 2022, or the purpose of instituting a private prosecution against the ‘Applicants, by the Respondent; (©) interacting and restraining the Respondent from re-nstituting, proceeding with or from taking any futher steps pursuant to the said private prosecution; and (6) costs of the apptcations, on an attorey and own client scale, including the costs of two counsel each employed by the Applicants. [2] On 10 ttarch 2628 an order was sought and obtained, by consent ofall the partie, forthe following institutions to be admitted as amici curiae; (2) Campaign for Free Expression: (©) Media Monitoring Aftica Trust; (©) South Afican National Editors! Forum; (8) The Helen Suzman Foundation; and (@) Democracy in Action NPC. [3] tmust however te recorded thatthe applications by the entities listed in (a) to (@) supra, were opposed by the Respondent. It was at the eleventh hour thatthe Respondent decided to consent to the admission ofthe aforesaid parties as amici ‘The Partios [4] Ms Maughan is a Senior Legal Journalist employed by News24. She has been reporting on the criminal investigation of the Respondent by the Scorpions; his ‘subsequent indictment; and the numerous legal challenges and interiocutory proceedings relating to the Respondent's prosecution, for almost 20 years.[5] Mr Downer is a Senior Counsel and Senior State Advocate stationed at the offices ofthe National Prosecuting Authonty, Cape Town, [6] The Respondent is a former President of the Republic of South Africa, He is also the private prosecutor against both Applicants The amici 7] The Campaign for Free Expression (CFE) is a not for profit civil society organisation described as an institute ‘dedicate to protecting and expanding the cght to free expression for al nd enabling everyone to exercise the right to the ful regardless ofthe reason, form or medium, whether this be by speaking out, protesting, arguing or whist bowing [8] Media Monitoring Africa Trust (MMA), a not for proft organisation, has been described as an instiuion that ‘has consistently worked to promote ethical and fair Journalism by advocating fr freedom of expression and supporting the responsible ree flow of information tothe public on matters of pubic interest. In doing so, MMA act as watchdog ‘that sek to enable an engaged and informed eitzenry, and promotes a cuture where the ‘media and the powerful respect human rights to encourage aust and far society.” [8] The South Affcan National Edltors Forum (SANEF) consists of editors, journalists and journalism trainers. The organisation's commited to championing South ‘Avica's hard-won freedom of expression and promoting quali, ethics and diversity inthe South African media” [10] The Helen Suzman Foundation (HSF) is a ‘non-governmental cganisaton whose objectives are to defend the values and institutions that underpin our constiutional democracy ‘andto safeguardte rights of vulnerable persons who are unable ulise the ordinary pital process in order to do so." [11] Democracy in Action (DIA) is described as @ ‘notforproft company, non-profit ‘organisation and civil society organisation, the mandate and purpose of wich isto advance, ‘support and defend demceratic and constitutional principles and values inthe Republc of ‘South Aca, and to supper constitutional democracy.”5 [12] The First, Second, Third and Fith amici have been admitted as such only in Fespect ot the applicatin insttuted by Maughan. The Fourth amicus nas been admitted in respect ofthe application instituted by Downer. Background [13] | Following a eximiral complaint by the Respondent dated 21% October 2021, the Director of Public Prosezutions, KwaZulu-Natal Division, on 6 June 2022, issued a certficate in terms of s 7(2) of the Criminal Procedure Act, Act 61 of 1977 (the CPA). This is commonly referred to as a ‘nalle prosegut. The contents ofthe said certificate are important and provide: ' CERTIFICATE IN TERMS OF SECTION 7 (2) OF ACT 51 OF 197 |, ELAINE ZUNGU, duly appointed Director of Pubic Prosecutions, KwaZulu-Natal hereby cerity that | have seen all the statements and affidavits on which the charge patiularieed below is based and that | decine to prosecute at the instanceof State SUSPECT: WILLIAM JOHN DOWNER COMPLAINANT: JACOB GEDLEVIHLEKISA ZUMA ALLEGED CRINE: CONTRAVENTION OF SECTION 41(6) READ WITH SECTION 41 (7) OF THE NATIONAL PROSECUTING ACT 32 OF 1998 DATE OF ALLEGED CRIME: os AUGUST 2021 POLICE REFERENCE PMB CAS s08/10/21 “This certicate is issued to JACOB GEDLEYINLEKISA ZUMA SIGNED at PIETERMARITZBURG on this 08 day of June 2022."114] 6 ‘Asa result, the Respondent, on the 5% September 2022 and in his capacity as “tre private prosecutor’ vaused ‘summons ia criminal case’ to be issued and served on the Applicants. The charges against the Applicants are as follows: @ © 15) @ in respect of Accused 1 (Downer) HE CHARGE IN RESPECT OF ACCUSED 1 141 Contravenieg Section 41(6(), read with section 41(7) of Act No, 32 of 1908 (Unauthorised esclosure of information (Only in respect of Accused 1) 42. Contravening Section 41(6() read with section 41(7) of Act No, 32 of 1996, (Unauthorised csclosure ofthe contents of a document); (Only in respect of Accused 1)" In respect of Accused 1 (Downer) and / or Accused 2 (Ms Maughan: 1N RESPECT OF ACCUSED 1 ANDIOR ACCUSED 2 2.4 Contravening Section 41(6)(), read with section 41(7) of Act No, 32 of 1998, (Unauthorged deciosure of the contents of @ document: (In respect ofboth ‘Accused 1 end Accused 2) 2.2 Accompliceto the breach of section 41(6\a) andlor (b), read with section 41(7) of ActNo, 32 of 1988 (Only in respect of Accused 2) In nutshell the charges levelled against Downer are that: fon the 9 to 10" August 2021, he sanctioned the disclosure by Advocate ‘Andrew Breitenbach SC to Maughan of a letter marked ‘Medical Confidentia!\witten by Brigader General (D1) Mdutywa (Moutywa’) of the South African Mittary Heattn Sevice; ang (©) between the 4” and 13 June 2008, Downer disclosed official information to a Journaist, namely Mr Sam Sole. [16] in respect of Maughan, itis alleged that: (@) she disclosed fo News24 readers and / or the general public, without the requisite permission, the contents of the aforesaid letter written by Mdutywa; ‘and (©) that she facilitated, aided and / or abetted Downer in the commission of the crime of contravening s 41(6\(a) and / or (b) of the National Prosecuting ‘Authority Act $2 of 1988 (NPA), when Downer sanctioned Mr Breitenbach to disclose the said ltr to her, without the requisite permission. [17] In response thereto, the applications, set out in paragraph 1 supra, were institute. [18] Maughan seeks to set aside the summons on three grounds, vz: (2) that the Respondent, Mr Zuma, has not obtained a nolle prosequi certificate {rom the Director of Public Prosecutions entiting him to institute the private prosecution against her; (©) that Mr Zuma lacks standing to institute the private prosecution under s 7(1) of the OPA 51 of 1977 (PAY); and (6) that the summons. a gross abuse of court process. [19] Downer has alleged that @) the private prosecution is unsustainable;(©) the charge of unauthorised disclosure to Mr Sole is legally and factualy ‘groundiess; (6) MrZuma does not satisty the requirements for standing in terms of s 7(1)(a) of, the CPA; and (2) the private prosecution is an abuse of process. [20] The papers filed inthis matter are extensive and the argument spanned two full court days. This court was favoured with extensive written submissions by the amici ‘as wellas the applicants and the respondentwho raised extensive argumentin relation to the merits of the matter. After having carefully considered all the oral and written, submissions, we are of the view that there are several matters raised which are dispositive ofthe application and we propose to only focus on those inthis judgment, [21] There are severa points in limine raised by Downer in his application as well ‘as by the Respondent in opposition to the relief sought specifically by Downer. We propose to deal with these first and thereafter tum to the individual grounds advanced. (@) Urgency [22] In his opposing affidavit, the Respondent has questioned the Applicant's (Maughan's) launching of the application on an urgent basis. However, it appears that this objection to the proceedings is not being persisted with. Indeed, it has not been raised in the Heads of Agument, nor has counsel for the Respondent, Mr Mpofu SC, raised this issue in is submissions before us. [23] In ary event, a consideration of the chronology of the history of the proceedings reveals thatthe reasons for launching the application on an urgent basis. ‘were justifiable, The sunmons was issued on the 6" September 2022 and called upon Maughan to appear at the Pietermaritzburg High Court at 09h30 on the 10" October 12022 in connection with the charges set out in the Indictment. This application was. launched on the 21# September 2022 with the object of having the summons set aside. The matter was duly ervolled to be head in court on the 10" October 2022. Given ‘the limited time period within which to act, there can be no citism levelled against9 the application being launched on an urgent basis. Accordingly, there is no merit in this point in imine, (©) Jurisdiction and/ or prematurity [24] This point in limine has been raised by the Respondent in respect of both the ‘applications launched by Maughan and Downer, The Respondent contends that this cout lacks jurisdiction tc determine the various grounds raised in the applications for the relief sought. The further argument was advanced that any challenge tothe ttle ‘of the Respondent to bring a private prosecution should be raised by way ofa special plea in the crinal court. Reliance is had on the provisions of s 108(1)(h) of the CPA \which mentions that a plea of no title by a private prosecutor can be pleaded. [25] Relying on the decision of Walis JA in Moyo ancl Another v Minister of Justice ‘and Constituional Deveiopment and Others; Sonti and Another v Minister of Justice ‘and Correctional Services and Others' the Respondent contends thatitis incompetent forthe Applicanis to raise their aforementioned complaints in a civil court, Walls JA, at paragraph 187, raised the following question: 'n Section 35 the Constitution guarantees a range of rights to arrested, detained and accused persons. Section 35(3) guarantes t all accused persons the right toa fair ‘val, Thatis secured in practie bythe provisions of the Criminal Procedure Act 51 of 41977 (the CPA}. The Appellants do not seek io impugn the provisions ofthe CPA in any way, yet they sre seeking to assert tel fair al rights before a civil cour, That should give pause for thought. Why are issues germane only inthe context of eriminal proceetings being canvassed and determined in cul proceedings and notin the consttutonaly complying forum, and in accordance wih the constitutionally compliant statute, provided forthe adjudication of criminal cases?" [26] This question is cearly shetorical and was not answered by the leamed Judge inthe said judgment. Wr Motu SC, has however urged US to accept this judgment and in particular the passage quoted aforesaid, as authority for the proposition that matters germane to the arminal courts cannot be brought before a civil court, He has also argued that this cout is bound by the decision of Walls JA "Moyo and Anather Minter of Justice and Constutonal evelopment and Others: Son and ‘Another v triste of liste ad Carecdonal Sonvees and Others 20%8(@) BCLR 972 (SCA)7 10 ‘This question wat recently considered by the full oul it President of the Republic of South Affice v JG Zuma and Others?. The cour, relying essentially on the decision of Solomon v Magistrate, Pretoria, rejected the argument advanced by the Respondent. At paragraphs [7] and (8, the court hel: (28) ‘T/__ Since then the proposition has been affimed inthe Constituiona Era in van Deventer v Reichenberg 1998 (1) SACR 118 (C), Nedeor Bank Ltd v Geitshana 2004(1) $4232 (SECLD) and in Nundalal v DPP, KZN [2015] ZAKZPHC 25 (@ May 2018). It therefore plain (sie) that, upon such authority, setion 106(h) of the CPA cannot be construedt be the exclusive route by which a person aggrieved by a private Prosecution can challenge a tile ofthe private prosecutor. Moreover, the propestion advanced about avoiding cross-contamination between the civil courts and cl process and the criminal courts and criminal process is overstated. In ruth theres no substantive dstincion between a criminal court and a civil court ~ there Is only one court and the steaming of exmi merely an organisational convenience, There are not alstinet jurisdictional competences. Ancilary thereto it follows thatthe process of such a court is also seamless. No question can arse over a trespass into the work of another court with a Aistinc jurisdiction, It sin these respects thatthe present case does not evoke the suspicion poised by Walls JA inthe Moyo and Sant case, cases and of chil cases to different Judges is [8] Accordingly, to sum up the notion that the only route of ele a party can invoke to contest the tite cf a private prosecutor isto raise the question of tile as a pla ‘mentioned in ¢ 106(h) ofthe CPA is misconcelved, In any event the very appearance ‘ofthe Appcant before the criminal cout is whats sought tobe prevented by the rele! ‘sought inthis urgent application, premised on the contention thet to appear in the ciminal court per e, would be to submit to an unlawful intrusion on the righis to ‘freedom of the Applicant, if the private prosecution is unlawful for want of proper author” [Mr Mpofu SC has argued that the aforesaid decision isnot binding on this cour. ‘At the hearing ofthe matter we were advised thatthe judgment isthe subject matter ‘of an appeal and that thete is no Supreme Court of Appeal authoriy nor Constitutional 2 prosidnt of the Republi of South Atica JG Zum and Others [2023] ZAGPINC 41 (18 Janutry 2023), } Solomon v Magistrate, Prtria 1850 (3) SA 608 (T)n ‘Court Authorty which would bind this court to accept the conclusions reached in the ‘aforementioned case of the President ofthe Republic of South Africa vJ G Zuma and Others. This submission however falls to take cognisance of the decision of the ‘Supreme Cour of Appel in Philips v Bothat where the court followed the decision of ‘Solomon v The Magistrate, Pretoria (supra). It also overlooks the recent constitutional court decision of Minera! Sands Resources (Ply) Lid and Others v Christine Reddell ‘and Others® which also cted, with approval, the decision of Philips v Botha, [29] We agree with the findings of the courts in the aforesaid judgments and Conclude that this court does not lack jurisdiction to entertain the applications launched by both Maughan and Downer. Accordingly, this point in imine has no merit and isto be rejected, (©) Stato Attorney's Authority [80] The Respondent has averred that as Downer was cited in his personal capacity ‘and because his alleged criminal conduct was performed for personal reasons and not in the furtherance of his mandate as a prosecutor, the State Attorney had no authority to represent him (Downer) inthis application. The Respondent has also called upon Downer to provide proof of such authority in terms of the provisions of Rule 7 of the Uniform Rules of Cour. [31] At the outset it s noted that the Respondent has not complied with the provisions of Rule 7. Rue 7 provides: the authonty of anyone acting on behalf of @ party may, after 10 days ater thas come to the notice ofa party that such person is 60 acting, or with the leave ofthe ‘court on good cause shoum at any time before judgment, be disputed, [32] The Respondent, vr Zuma, has been aware, since the 27% September 2022, that the State Attomey is acing on behalf of Downer inthis application. tt was only on the 31™ January 2023, inhis answering affidavit, that this challenge was raised. This was clearly beyond the 10 day period refered to in Rule 7. No explanation forthe + Pps v Botha 1999 2) S55 = hana Sande Resources (AY) Lid and Otters v Christine Redland Crs 2022] ZACC 37 (14 November 2022)2 delay has been furnished nor is there an application before us to condone the late request, The objection therefore is not in accordance with Rule 7 and has no effect. [93] _In any event and in enswer to the challenge, Downer has, in reply, provided Proof that the NPA had instructed the State Attorney o act on his behalfin this matter. [94] _ Inthe Respondent's Heads of Argument and indeed in argument before us, Mr ‘Mpotu SC has relied on the decision of Zuma v Democratic Allance and Another® in Support of his submission that the State Attomey has no authority to represent Downer. The reliance on this decision is misplaced. The decision relied upon by Mr ‘Mpofu SC made it clear that the State Attomey is not authorised to outsource its {unctions to a private Atlomey at State's expense. In the application before us the State Attomey has not cutsourced its functions to a private Attorney and is indeed representing Downer itself. Consequently, this point inline falls to be dismissed. (@) Nondoindor [95] _Inhis answering afidavit inthe application brought by Downer, the Respondent hhas averred that Maughan has a direct and substantial interest inthe outcome of the Downer application and cught accordingly to have been joined as of necessity. Ithas further been submitted that as she has not been joined, this is fatal to the application ‘and thatthe application ought to be dismissed, [26] The record reveals that the application launched by Downer was served on Maughan’s Attoreys on the 27 September 2022, Maughan has elected not to Participate in the proceedings. [37] The Respondent's reliance on this point in limine must also fail [88] We turn now to concider each of the grounds raised by the Applicants a0 well ‘as the Respondent's resronse thereto, Zuma v Democrat Alinco and Another 2021 (6) SA 180 (SCA)2 (@) The absence. ficate in respect of the private of Ms Maughan [89] $7(2)a) of the C7A provides: @ (8) No pivate prosecutor under tis section shall oblan the process of any ‘cour for summoning any person to answer any charge unless such vate prosecutor produces to the ofcer authorised by law to issue ‘uch process a certificate signed by the Attomey-General that he has ‘eer the staeents o fidavits on which the charge is based and that he declines to prosecute atthe instanceof the State, [40] The Respondent relies on two nolle prosequl certificates in support of his private prosecution of Maughan. The fist certiicate was issued on the 6 June 2022 ‘and has already been refered to eatler in tis judgment (paragraph [13] supra. [tis readily apparent from this certificate that the ‘suspect’ named is Downer and not Maughan. This, in our view, Is also clearly evident from the reading of the Respondents ‘Sworn Statement in Support of Criminal Complain’ (sic). The only reference to Maughan is thatthe alleged unauthorised disclosure ofthe sald ‘Medical Report! was made to her It ison this basis that the Respondent contends that ‘Upon 8 proper contextual and holistic interpretation’, the aforesaid nolle prosequi certificate applies to Maughan as well, No further submissions have been made in support of {his contention, [41] In a lotr dated 25” October 2022, the Director of Public Prosecutions confirmed to the Respondents Attorneys that the nolle prosequi cetiicate did not apply to Maughan. The content ofthat letter reads as follows: “Dear Mr Ntanga RE: NOLLE PROSEQUI - PIETERMARITZBURG CAS 309/102 ‘YOUR REF: M. NTANGA/Z0016/21 DATED 30 SEPTEMBER 2022 REFERS \Whon | took the decision in respect ofthe aforemantoned matter the suspect under consideration, as eqressed by the complainant, was Mr Downer.rn Based on the invectgatons conducted and the evidence in the docket | declined to prosecute Mr Downer. ‘Ms Maughan was not contemplated asa suspect but rather only a wines. WL am now requred to decide whether or not to prosecute her, | require full Investigations to be conducted before | make such decision.” [42] We accordingly agree with the submission that the nolle prosequi certificate produced by the Respondent when he issued summons against Maughan, was not |seued in respect of a criminal case against Maughan. [43] On the 21* November 2022, the Director of Public Prosecutions issued a second nolleprosequi certificate, the certificate reads as folows: c ‘CERTIFICATE IN TERMS OF SECTION 7 (2) OF ACT §1 OF 1977 |, ELAINE ZUNGU, duly appointed Director of Public Prosecutions, KwaZuu-Natal hereby certify that | have seen all the statements and affidavits on which the charge parlcularized belowis based and that | decine to prosecute any person in connection with this matter at the instance of the State COMPLAINANT: JACOB GEDLEVIKLEKISA ZUMA ALLEGED CRIME: CONTRAVENTION OF SECTION 41(6) READ WITH SECTION 41 (7) OF THE NATIONAL PROSECUTING ACT 32 OF 1998 DATE OF THE ALLEGED CRIME: 9 AUGUST 202 POLICE REFERENCE: PMB CAS 06/10/21 ‘This certificate i esued to JACOB GEDLEYIHLEKISA ZUMA ‘SIGNED at PIETERMARITZBURG on this 24 day of NOVEMBER 2022”5 [44] _ In the second sugplementary affidavit fled on behalf of the Respondent, tis submited that the second certticate, in as much as tretates to ‘any person in connection ‘with tie matter, ie uffclent to include Maughan, It is further submited thatthe issue ‘of the second cartficate confirms that the frst nolle prosequi certificate covered or applied to Maughan as well [45] _ The aforesaid submissions are, in our view, flawed for two reasons. Firstly, the issue ofa second nolle prosequi certificate cannot cure the absence ofa nolle prosequi certficate pertaining to Maughan at the te the summons in the private prosecution was issued, The provisions of s 7(2)(a) of the CPA makes it clear that a private prosecutor must produce a nolle prosequi certificate before a summons is issued, In ‘Nundalalv DPP KZN ard Others’, the court held that: ‘Production of the certificate is a peremptory statutory prerequisite fora private prosecution” (At para 21). ‘The court futher held trat non-compliance would amount ‘to a material defect in the Private prosecution ofthe Applicant’. (At paragraph 40). 146] Secondly, the second nolle prosequi certificate does not apply to Maughan, ‘The certificate does not name her as a ‘suspect’ as is evident in the naming of a ‘suspect nthe fist cerifcate. It has been submitted on bebalf ofthe Respondent that iven the nature ofthe complaint, the wording of the second certificate — in particular 1y person in connection with this mate’ — is sufficient to include Maughan, [47] The argument is edvanced thatthe certfcate can only apply to a maximum of ‘ic individuals who are named in the ‘complaint’ affidavit, viz ~ Advocate Downer; Maughan; Advocate Breitenbach; President Ramaphosa; Minister Lamolla and / or Advocate Sti la Bulut, These six people have specifically been named either as 2 suspect, accused persons or key witnesses. [48] _ Its however, noted that a reading ofthe complaint and in particular paragraph ‘thereof, that the complaint was directed at ..ll persons... who ther prosecutors "Rundle v DPP KZN and Cer 2018] ZAKZPHC 25 (8 May 2015)6 ‘and | or investigators who have Violated the provisions of the NPA Act and the Consttuton’. ‘As stated earlier in this judgment, Maughan Is a "Senior Legal Journals and not @ Prosecutor or Investigator referred to in the complaint. [49] _ Maughan is therefore clearly not named or refered to as a suspect or accused in the complaint. [60] We are accordingy of the view that the Respondent, Mr Zuma, has failed to produce any nolle prosequi certificate which would entitle him to institute a private prosecution against Maughan. The summons issued against Maughan is therefore Lniawful and is to be set aside. [1] Ordinafiy this should be the end of the matter insofar as it concems Maughan. However, in Spihaus Property Holdings (Pty) Ltd and Others v Mobile Telephone [Networks (Pty) Ltd and Another the court held the folowing: [44] _..The Supreme Court of Appeal iself has said that it i desirable, where possible, fora lower court to decide all ssues raised in a matter before it This applies ‘equal tothe Supreme Court of Appeal. This is more so where, as here, the final appeal court reverses its decsion on the chosen limite point. This may impact on the faimess of an appeal hearing, Liigants ar ented o a decision on all ius raised, especially ‘were they have an cpion of appealing further. The court o which an appeal lies also benefits fom the reagoning on all issues. [45] The practice of choosing one polnt in disposing of an appeal in the Supreme Court of Appeal predttes the Constitution and arese atthe time when that court was the apex court. It may have been proper inte pre-consitutonal er. Thats no longer the ‘case because appeals agains decisions ofthe Supreme Court of Appeal lito this court hich is now the apec court As was observed in Mphahiel, such practices should be corefuly scrutriced to encure that they are compatible with the cuent constitutional scheme, This is because not all practices which were established under the apartheid ‘era are consttuionaly cbjestonable; some are not in line with the present order (Footnotes omitted. * Spinaus Property Hoings Py) Lid and Ottrs v Mobile Tlephone Networks (Pty) Lid nd ‘nother 2019 (a) 8A 405 (CC pares 44-5,v [52] Following on this dgment, most courts have stated that even ifa matter can be disposed of on one issue alone, the remainder ofthe issues raised have to be dealt vith? We accordingly consider the remaining grounds relied upon by the Applicants to have the summons sel aside. (©) Section 7(1) of the CPA [53] The second ground relied upon by Maughan in seeking to set aside the ‘summons is that the Respondent, Mr Zuma, lacks standing to institute the private prosecution in terme ofthe provisions of ¢ 7(1) of the CPA. This ground is also reliod ‘upon by Downer in his agplication to have the summons set aside. [54] $7(1)(@) of the CPA provides: "(1) tary case m which a Director Pubic Prosecutions decines to prosecute for ‘an alleged offence - (2) any private person who proves some substantial and pecular interest inthe suffered in consequence ofthe commission of the said offence; ue ofthe trial arising out of some inury which he individually ‘ay, subject tothe provisions of section 9 and section 58(2) ofthe Trial ustes Ac, 2008, ether in person or by legal representathe,instute and conduct a prosecution in respect of such offence in any court ‘competent to try that offence,” [65] In van Deventer v Reichenberg and Another’, Lichtenberg JP interpreted this section as follows: “A pevate person's ite to Insitute a private prosecution is thus dependant upon his establishing that he hasan intrest inthe isu ofthe ia thatthe interestis substantial and peculiar to him: * Motaav Master, North Gauteng High Cour 2018 (6) SAE (SCA) para 88 ‘evan Deventry Reichenbary and Anoter 1006 (1) SACR 119 (6) a 127 CoG18 (i) hatte interest arses rom some injury which he individually suffered; and (jv) that the inury was suffered as a consequence of the commission of the aloged offence. ‘The underying purpose of confining private prosecutions to those who have a substantial and peculiar interest was expressed as follows by Van der Heever J (as he thon was),in Altemay General v Van der Merve and Borman 1848 OPO 197 at 201 "The object ofthe phrase (substantial and peculiar interest) was clearly to prevent private persons from arrogeting to themselves the functions ofa publc prosecutor and prosecuting in respect of offences which donot alec them in any dffrent degree than any ether member 2 the publ; 1 curb in other words, the actives of those who would atherwige constite themselves public busybodtes.” [56] Both Applicants have submitted that the Respondent has not met these equitements. Both Applicants aver that the Respondent does not have any “substantial and pecular interest arising out of an ‘injury’ suffered as a result of Maughan ‘obtaining and publishing the letter from Mdutywa. Beth Applicants have referred and relied upon the judgmentof Koen Jin the S vJ G Zuma end Thales South Africa (Pty) Lig, who found that (a) Mdutywa's letter was a public document and was not intended to be confidential ror was iin fact confidential; (©) the letter did not contain any confidential particulars about the Respondent's (Mr Zuma’s) medical condition; (©) the letier was filed by Me Zuma's Attorney as an anne to Me Zurna's awn postponement application; and (@)Mr-Zuma's Attomey did not seek any order thatthe affidavit or the letter be sealed or kept confidential 1 ¥416 Zuma and Thales South Atica (Py) Lid [2021] ZAKZPHC 89 (28 October 2021)[57] At paragraph 200 he concluded ~" letter conettuted an actionsble violation of Mr Zuma's rights.” 1 nol persuade thal the disclosure ofthe [58] Applications for Leave to Appeal these findings were dismissed by the Supreme Court of Appeal and the Constitutional Court [59] _ In response therets, the Respondent has alleged that he is victim’ of a crime and as such is ented t institute a private prosecution, He has further alleged that he isa person who has sifered personal injury as a consequence of the criminal leaking of ‘my mediealrecords’ Finally, he has described te inury he allegedly sufered as aresult ofthe disclosure of Mdutywa's letter to Maughan as ‘unfair riicsm. [60] We have already referred to the findings of Koen J in this judgment. Of Particular importance, in our view, is the finding that the said letter was a public document and that it was vague and general interme and doss nat disclose any paticlaty ‘which could be said fo amount fo a violation of Mr Zuma's rights to privacy. Specialy, does not mention the medical condition Mr Zuma sufers from ...” (paragraph 265). As these aspects are now res udicata, we accept and agree wit the conclusions reached by Koen J, [61] It is noted that the ‘unfair ertciam’ Mr Zuma alleges he has suffered is public ‘commentary and opinion regarding his application for @ postponement of the hearing ‘of his special plea. itis not as a consequence of Maughan obtaining the said letter. It ‘cannot therefore be said that whatever ‘injury’ the Respondent has alleged that he has suffered as a result of public commentary and opinion, js an injury in terms of the Provisions of s 7 of the CPA. [2] With regard tothe charges arising from Downer’ telephonic conversations with ‘Sam Sole, the Respondent has not alleged any jun’ that he has suffered. Indeed, the answering affidavit is silent on this aspect. Mr Mpofy SC, during argument, referred to various extracs of the conversations between Downer and Sam Sole and, ‘much tothe delight of some members ofthe gallery, labelled Dower as'a serial leaker However, this does not constitute an ‘injury’ to the Respondent, Downer has, in the founding affidavit, confirmed the telophoric conversations with Sam Sole. Extracts of2» the conversations were annexed to the founding affidavit. He has however denied ‘that he leaked any confident information about ihe Respondent to Sam Sole. The Respondent has not, in the answering affidavit, responded or challenged these averments, [69]. nthe result, wo ore ofthe view that the Respondent, Mr Zuma, has fied to allege and prove an injuy nthe context of s 7(1(a) ofthe CPA. Accordingly, the summons in respect of oth Applicants, defective and sto be set aside, [64] Finally both Applizants have submited that the Respondent's summons is an ‘abuse ofthe court provess of process ‘The applications by MrDowner and Ms Maus [65] Both Applicants indicate that the private prosecution of the Respondent constitutes an abuse of process. Downer, in his challenge to the private prosecution, alleges it constitutes an abuse of process consistent with the Respondent’ ‘Stalingrad’ tactic. Secondly, that it has been instituted for an ulterior purpose, namely, to prevent him from performing and carrying out his duties as a prosecutor and lastly, the private prosecution is without merit and is unsustainable. [66] In respect of Maughan she alleges itis a gross abuse of process as the ‘summons in the private prosecution has been obtained for the ulterior purpose of Intimidating, harassing and preventing her from performing her job as a journalist by freely reporting on the Respondent’ criminal trial, The ulterior purpose she submits is evident from the following (2) The public comments made by representatives, family and close associates of the Respondent; (©) The Respondents anewering affidavit which demonstrates his. animosity toward her wherein he inter alia describes her as:a the propaganda machinery ofthe media, atoolused by the NPA fo perpetuate falsehoods, anostejoumalst no Is Incapable of balanced reporting’ and an ‘ant-Zuma cuseder, (6) There are no proepects of success in respect of the charges which form the subject matter ofthe private prosecution; (4) The private prosecution constitutes @ violation of the right of media freedom recognised ins 16(1) ofthe Constitution [67] _twarrants mentioning that in respect of both applications instituted by Downer {and Maughan, there are no genuine disputes of fact, nor has the Respondent argued that there are any, and the applications in the matter can be determined on the papers as they stand. This is as the Respondent fai to answer any of the allegations made ‘by Downer and Maughan or by providing any evidence to dispute them. The answering affidavit Is replete with repetition, namely, that matters willbe addressed in the trial ‘court and are denied. [68] What is most noteworthy is the manner in which the respondent has deel with the facts pleaded in the founding affidavits of Maughan and Downer. There are blanket, bald? denials of material allegations without laying any factual bas therefor cr any explanation fo jusify his denials, In answer to the allegations in the founding affidavits, the Respondent says the following, inter alia (2) “cay na obligation to reveal the minute details of my evidence inthe frtheeming minal proceedings. (©) ‘..althese issues wil be fully ventlted during evidence andor cross examination, at the criminal tal. No useful purpose can be served in dealing with them in this application. (2 ‘eave these factual isves fr their proper ventilation in the criminal ta, "nerds for there to be genuine dsputes of fct bald alagations of dana are not sutcen to este ‘2s apute of fact Hore floreres is made tothe decion By Harmen National Drecor of Pe Presecutansv Zuma 2000 (2)5A277 (SCA) para 28.2 (6) "The defences raisedherein on the mefts belong to he criminal proceedings.” (©) ‘athese ae matters which ought properly tobe raised during ora the endo the criminal tral? ()‘sthis issue is also bung prematurely raised. It cught property to be raised in terms of section 108(1)9. [69] Before dealing with the individual grounds advanced by Downer and Maughan, itis apposte at this juncture to consider how our courts have interpreted what is meant by an abuse of process and under what circumstances they have intervened to arrest {an abuse and bring an end to proceedings. \tby abuse of process [70] Our courts have not attempted to have an alhencompassing definition of what is meant by an abuse af process. Over the years there have been a number of, instances in which the courts have deemed it appropriate to intervene and arrest an abuse of process whict include those instances where proceedings have been instituted for an ulterior andlor improper purpose and for an improper andlor ulterior motive. [71] In Lawyers for Human Rights v Minister in the Presidency and Others," the following was said In Bainash, Mahomed Cd stated that there could not be an all-encompassing defntion of'abuse of process but that it could be said in general terms ‘hat an abuse of process takes place where the procedures permited bythe Rules ofthe Court to fiat the pursuit ofthe truth ae used for « purpose extraneous to that objective.” The court hoe "There can be no doubt that every Court is entitle to protect itself and others against sty abuwe oF ils processes, Whe i is salsa hal he sue of & subpoena particular case indeec constitutes an abuse tis quite entitled to sett aside. As was said bby De Vilirs JA in Husa v Hudlson andl Another 1827 AD 259 at 268: “When..he Cout finds an atiempt made to use for ulterior purposes machinery ovised forthe better administration of justice, tis the duty ofthe Courtto prevent such abuse." ® Lawyers for ura Fights Mitr in th Prosidoney and Otors 2017 (1) SA BAS CC para 20,a It can be said in general terms..that an abuse of process takes place where the procedures permits by te Ruies of the Court to tacitate the pursuit ofthe truth sed fora purpose extraneous to that objective." [72] Our courts have an inherent power to prevent an abuse of court process. Initially the courts intervened to prevent an abuse of process in circumstances where the power to do so was exercised with the greatest caution and only in a clear case, De Viliers JA writing for a Full Court in Hudson v Hudson and Another‘* held the following: “That every cout has the inherert power to prevent an abuse ofthe machinery provided for the purpose of expediting the business ofthe Court admits of no doubt [Butts a power utich has to be exercised with great caution, and only in a clear [73] In Ascendis Animal Health (Pty) Lid v Merck Sharp Dohme Corporation and Others. the court held at paragraph 40: ‘Rouse of process concerns are mativated bythe need to protect ‘he intesiyof the ‘adjusieative functions of cour, doing 80 ensures that procedures permited by the ‘ules of the court are not used for a purpose extraneous to the tuth-seeking objective inherent to the judicial process” [74] In adation, that a cour will arest an abuse in private prosecutions was settled by our courts in Solomon v Magistrate, Pretoria, and! Another'® which concerned an ‘applcation to the Supreme Court for an order iterdicing the magistrate from hearing 2 private prosecution on charges of fraud. Among the issues which arose for determination was an otjecton in limine that the Supreme Court had jurisdiction to entertain the application and secondly whether or not the applicant had discharged the ‘onus to show thatthe prosecution was unfounded, [75] Dealing with the second aspect, the court held the following at 607F-H: * Hudson v Hodson aed Anoior 927 AD 259 at 267-268, 2° Ascendis Animal Hoan (P) Lidv Merck Sharp Dane Corporation and Others 2020 (1) SA 227 (cor Solomon v Magistrate, Petra, and Another (1950 (3) SA603 (7) supra"The Court has an inherent power te prevent abuse of its process by frivolous oF vexatious proceedings... and though this power is usually asserted in connection with Civil proceedings ites, in my view, equally where the process abused thal provided {or in the conduct of a pelvate prosecution, In such a case 35 | have postulated, therefore, this Court would n my opinion by Vitue of ts inherent power be entitled to set ‘aside criminal summons issued by its own ofials orto iterdit futher proceedings Upon it. It is also by virtue oft inberent power that the Court interferes to restrain egalies in inferior courts either by way of interdict er mandamus or by deciaratory ‘order, as thas on occasion done... have ne doubt whatever that ina similar case the Court weulé have power to stop a private prosecution in an inferior court” [76] The decision in Solomon was cited with approval and followed by the decision in van Deventer v Reichenberg and Another where it was held ‘A court has jurisdiction to set aside and interct a privat prosecution whichis irregular, vexatious or an abuse ofthe process of cout” This aporoach was followed in the SCA in Philips v Botha."® Hoexter {JA referred to an Australian High Court case fora definition of abuse of civil process. ‘The SCA endorsed the definition of an abuse of process as. the process is employed {or some purpose other then the attainment ofthe caim in the action. the proceedings are merely a stalking-horse to coerce the defendant in some way entirely outside the ambit ofthe legal aim upen which the Courts asked to adjudicate they are regarded as an abuse for this purpose..." 771 Philips endorsed the principle thatthe court has an inherent power to prevent {an abuse ofits process from frivolous or vexatious proceedings and further referred to Westem Assurance Co v Caldwell's Trustee™ and Hudson®, Endorsing the view ‘expressed in Hudson, the court held that where there is an attempt made to use for terior purposes machinery devised forthe better administration of justice, a court has ‘a duty to prevent such abuse and such power must be exercised with great caution ‘and oniy in clear case. ln addition, the SCA dealt with the abuse of process in relation to a private prosecution, The question to be asked was whether such private prosecution was either insttuted or thereafter conducted for some collateral and ‘van Devenir vReichenbeg and Another sup at 128 CoO 1" Philips v otha supra a S08 FG 1» yostom Assurance Cov Clavel Trusto 1918 AD 262, 2 Hodeon v Huson ad Aner supra5 Improper purpose, rather than with the object of having criminal justice done to an offender 2° [78] In Nedeor Bank Lid and Another v Goilishana and Others, the court was required to decide wheter to interdict a private prosecution in circumstances where the private prosecution was alleged to have been instituted with an ulterior motive - namely to oppress and harass the applicant rather than fo secure criminal justice and whether or not such private prosecution constituted an abuse of process. The court Considered the decisions in Hudson and Solomon and also aligned itself with the sentiments expressed in those decisions that ordinafly, reasons and motives of a party for instituting legal proceedings are irrelevant, However, i the court finds on the facts of a particular matter that such private prosecution was being used for uiteior purposes, itis the duty o' the court to prevent such abuse although such power must bbe exercised with great caution, Such power derives from the inherent jurisdiction of ‘superior cours to prevent an abuse of process and such power will be exercised with caution and only in a clear case but the courts will not hesitate to act where ‘necessary— unless the [175] The Defendants inthe above case had, in their epecal plea, indicated thatthe institution of the defamation actions constituted an abuse of process of court ‘amounted tothe use of court processes to achieve an improper end; to use litigation to cause the defendant’ nancial and /or other prejudice in order to sence them; and lastly, violated the right to freedom of expression entrenched in s 16 of the Constitution [176] One of the issues raised in response to the exception was that allowing the SSLAPP suit special plea vould run contrary to the decision in Maphanga which placed ‘emphasis on the merits ofa claim in the abuse of process analysis, whereas SLAPP ‘suits postulate that aitigant may raise an abuse of process as a stand to.a substantive claim, jone defence [177] The Constitutional Cour, in determining its jurisdiction, held itwas required to decide whether the common law doctrine ofthe abuse of process catered for a SLAPP. ‘suit defence and SLAPP suits, by definition, limit public participation by abusing the legal process to silence and deter public participation. The Court embarked on an 5 minora Sands Resources (Py) Ltd and Otters v Cistine Reo and Otors supra at para 2. © hora Sands Resoucos (Py) Lid and Othorsv Cisne Reade and Others supra at para 1d her Sonde Resewooe (Py) Lid and thorev Cvcine Redd and Others supra al para 1886 analysis of the orgin ofthe SLAPP suits in the USA and Canada and remarked that SLAPP suits were frequently brought as defamation claims, abuse of process, malicious prosecution or delctualiabilly cases. The primary aim of SLAPP sults is not to enforce a legitimate right but o silence or luster the opponent and: ‘are inlended to silence cities by burdening them with the cos of itigation inthe hope ‘that their crtism or oppostion wil be abandoned or weakened... the plait does not necessarly expect to win its case, but wil have accomplished is objective ifthe defendant yields toe intimidation, mounting legal costs or exhaustion anda is dofence and alto, important, its crcism of and oppeston to the project or evelopment.” dons [178] The court, in analysing the defence proffered on whether or not SLAPP sults could be accommodated under our common law abuse of process, opined that the special defences pleaded by the Defendant, ‘distilled tots essence, was a defence of abuse of process’ It analysed the South African cases over the years in which courts hhave used their inherent powers to protect the institution from litgious abuse. It referenced the decision in Lawyers for Human Rights v Minister of Home Affairs and (Others MEC, Department of Co-Operative Governance and Traditional Affairs v ‘Maphanga Philips v Botha’, Beinash v Woxley’" and Ascendis Animal Health (Pty) Ud v Merck Sharp Dohme Corporation and Others" The court futher stated that ‘There can be no doubt that avery Cour is ented to protect tse” and others against an abuse ofits processes’. An enquiry into abuse of process depends on the facts and circumstances of each case. [179] The Court also remarked that there is a difference between ‘abuse of process that impinges upon the court's integrty and} abuse that is designed to cause harm to a party.” The judgment erdorsed Philips in the context of a private prosecution and © hiner Sands Resources (Py) Lt and Others vs Christine Redland Oars supa al paras 2 ens Lawyers for Human Rights v ser of Home Affars and Othrs [2017] ZACG: 22; 2017 (6) $A 480 (G0), 2017 (10) BCLR 1242 (CC. ‘MEG, Deparment of Co-Operatva Govemance and Tsdona fas v Maphenga supra "Philip v Gath 1960 (1) SACR 1 (SCA) " Bainah v Woy [1097] ZASCA 32: 1067 (3) SA 721 (SCA) at 734 "Ascendls Anal Heit (Pt) Lav Merck Sharp Dohme Corporaton and Otters supra Mineral Sands Resources (Py) Ld and Others vs Cvsine Reda and Others supa para 5{ound that a court has a duty to intervene in circumstances where there is an attempt to utlize court processes for an ulterior purpose. [180] In Mineral Sands, the court held that in considering the abuse of process and SLAPP suit defence ‘both motive and mais must play arotein the enquiry.” Itconfiamed the court's powers to protect its own processes by thwarting an abuse of process and ‘agreed that what constitutes an abuse of process will always be Yact specie and there an be no al-encompasing detiniton of A close examination of all the relevant circumstances must be made.”> [181] At paragraphs 91 fo 93 of the judgment, the Court identified the diferent forms ‘of abuse of process in our law. The firsts the use ofthe rules of court to delay a case (F to deliberately misemploy a claim for urgency. Such abuse uses the procedural rules ina manner that they were not intended to be used and also causes prejudice to the opposing party. The second kind of abuse relates to that of the vexatious itigant \who repeatedly brings unmeritorious cases. The focus is on the nature of the case rather than the procedure employed. The vexatious itigant unreasonably, persistently ‘and habitually brings unsustainable cases. The third type of abuse of process cases involve illegal conduct, where the underlying reasons that motivated it being brought is imelevant. The sole issue is its legality, an example being an ilegal arest, These {do not abuse the court process, but are ilegal in respect of other processes and thus ‘also constitute a form of abuse. The fourth type of abuse is vinere conduct plays a Ccontral, indispensable rcle. Cases lke malicious prosecution or the integrity of a private prosecution fal into that latter category. The last type of abuse of process: ‘recognised by the Constiutional Court is SLAPP suits. [182] At paragraph 83, the court recognised that ‘here is another species of abuse, though, that does in my view deserve the nomenclature abuse of process It iin the form of what we have before us inthis matter.’ The court also recognised those instances where ‘a court process was not being ullised to resolve a genuine dispute but was employed to achieve a result that undermines the rights in the Constitution. This the court Teferred to as being ‘abusive litigation’. The court specifically recognised that abusive ¥ Aneral Sands Resources (Py) Lid and Otters vs Christine Rede and Otrs supra at para 78 " Mtheral Sands Resouces (Py Lid and Others vs Chnstne Reda and Others supra at para 8