Johannesburg - President Cyril Ramaphosa has abandoned the bad legal advice that he could simply ignore the criminal charges against him in the private prosecution sponsored by his predecessor, former president Jacob Zuma, by approaching the court to try and set aside the summons.
But when it comes to urgency, Ramaphosa may find that time is not on his side as he has applied belatedly to the court to review and set aside the summons that Zuma served on him almost two weeks ago.
At the ANC national elective conference earlier this month, Ramaphosa persuaded former president Kgalema Motlanthe’s ANC Electoral Committee to disregard the criminal charges. This allowed him to avoid being disqualified from running for the ANC presidency, and he successfully won a second term to lead the governing party.
But once more, he missed the opportunity to immediately bring the case before the court. Instead, he chose to ride the wave of wrong legal opinions punted in the mainstream media in an attempt to embarrass Zuma by forcing him to withdraw the case.
Zuma is due to oppose Ramaphosa's bid to avoid taking the dock, setting up a possibly protracted legal dispute that may not be resolved when Ramaphosa is due to appear before the criminal court on 19 January, as per the summons. Ramaphosa has applied for the court to hear his interdict on 10 January.
However, Zuma’s foundation on Wednesday warned that the application was an "afterthought" and “irrational,” adding that "Ramaphosa, who is rather an accused person, having been criminally charged on 15 December 2022, has finally come to his senses and taken legal steps to allow the courts to determine the validity or otherwise of the criminal summons delivered by the private prosecutor".
In arguing for urgency, Ramaphosa said Zuma had subjected him to "abuse," and that "requires the court's immediate attention". He said Zuma showed "blatant disregard of the law and abuse of it for ulterior purposes, significantly harms the rule of law and confidence in the rule of law".
"It must be addressed without delay. The interests of the Republic and its people must urgently be protected from Zuma's abuse. The impact of his conduct on confidence in the Republic and my office cannot be permitted to continue for one more day. The harm is serious and may not be reversed later."
He said that he could not obtain any alternative substantial redress in due course to undo the harm. Secondly, he said, there had been no undue delay in launching the application.
"There will also be no harm to Zuma if the matter is heard on an urgent basis. Zuma has taken a significant amount of time and waited until the day before the ANC's 55th National Conference to issue the summons in an attempt to secure an ulterior purpose."
He said Zuma could wait longer to prosecute the private prosecution after the court had determined the second part of the interdict, which would deal with the merit of the arguments (Part B).
Ramaphosa said Zuma served the first summons on him on 15 December in which there was no copy of the National Prosecuting Authority's nole prosequi (decline to prosecute) certificate that related to him. He said that he immediately sought legal advice, and two days later, his representatives at the State Attorney wrote to Zuma's legal team.
They requested that the summons be withdrawn since it was defective.
Zuma's legal team responded with a letter on the same day, 17 December, in which they attached the nole prosequi certificate dated 21 November 2022, "claiming that it relates to me".
They refused to withdraw the summons unconditionally and proposed an agreement to re-issue the summons, he said.
A day later, the State Attorney wrote another letter to Zuma's attorneys, rejecting the conditional withdrawal suggested. "They, once more, requested that Zuma withdraw the summons and pointed to more reasons why the summons were defective. They also warned that if the summons was not withdrawn unconditionally, they were instructed to approach this Court for appropriate interdictory relief pending the setting aside of the summons, alternatively, the summons and the nole prosequi certificate."
Ramaphosa said Zuma did not withdraw the summons by 21 December, and he instead issued a new summons with a set date of 19 January 2023. By issuing the new summons, he said, Zuma "made it pertinently clear that he will persist with the private prosecution unless a court directs him not to do so".
"In the circumstances, I will not be able to secure adequate redress in due course because, by the time this matter is heard in the ordinary course, the prosecution would be well underway, if not complete. This will frustrate the relief that I seek in Part B and render irreparable the harm that I will suffer by being subjected to an unlawful, unconstitutional and invalid private prosecution," he said.
Zuma's foundation said on Wednesday that Ramaphosa's interdict application was "a far cry from the absurd and preposterous stance initially adopted by Ramaphosa, his media praise-singers and "legal experts" that he is legally entitled to simply "ignore" the criminal charges and summons issued by the Registrar of the High Court (and) we strongly warned all concerned about the obvious dangers of such an attitude. We are pleased that sanity has seemingly prevailed".
"Any sober-minded and neutral observers should be wondering: Since the criminal charges and summons were already declared invalid by the State Attorneys on behalf of President Ramaphosa, set aside by Motlanthe and his electoral committee as we read in the South African media, what is it that the court is now being asked to nullify? Was the public not told that the Oudekraal principle does not apply to President Zuma's charges?”
The Oudekraal principle aptly stated that even an unlawful process could have legal consequences. On the other hand, said the foundation's spokesperson, Mzwanele Manyi: "We condemn the belated actions of Ramaphosa, more particularly in that having wasted so much time following such questionable advice, he now expects President Zuma to miraculously access his legal team whose members are obviously on family holidays to launch an application during the Christmas long weekend is intended to cause the maximum inconvenience, especially when valuable time was wasted on unsustainable positions and issuing meaningless threats and deadlines".
"If it was truly urgent, this application should have been brought within a day or two after the delivery of the criminal summons. The alleged urgency of the application is simulated, self-created and malicious," Manyi said.
He said Zuma would do his best to locate and consult with his legal team, and once they have studied the papers, a more comprehensive statement will be released. He added that the application would be opposed. He said Zuma also "learnt about the urgent application from the media to whom the court papers were strategically leaked even before being received by his lawyers".
"Instead of this waste of the court's time and further abuse of state resources, beyond the unlawful activities of the Presidential spokesperson during the ANC Conference, President Ramaphosa, like all other criminally accused persons, must raise whatever concerns he has in the criminal proceedings which will take place only a few days after his application".
Manyi continued: "If indeed all are equal before the law, then this application will be dismissed as nothing but transparent intimidation tactics and a blatant invitation for undue preferential treatment. Neither President Zuma nor any court of justice should be bullied in this fashion by any criminally charged individual, irrespective of whatever political position or office they might hold".