An Opinion published in The Star of 03 April 2023 on page 8

 Private Prosecution: Trial and Error

The hearing on March 20 of the application by advocate Billy Downer and journalist Karyn Maughn for the court to declare the private prosecution by former president Jacob Zuma against them unlawful and set aside echoed the President of the Republic of South Africa v Zuma and others heard on January 12, decided on January 16.

In that case, President Cyril Ramaphosa lodged an urgent application to interdict the court from giving effect to the nolle prosecui certificate of November 21, 2022 and summons issued with regard to it relating to him. It was an interim interdict as part A in his application, pending the hearing of part B which asks the court to declare the summons, nolle prosecui certificate (as far as it relates to the president) and private prosecution to be declared unlawful and set aside.

In the hearing of the President of the Republic of SA v Zuma and others case, advocate Dali Mpofu SC representing Zuma argued that there is a distinction between the criminal court and the civil court and that the current president cannot seek relief in the civil court but must challenge the title of the private prosecutor in the criminal trial court by raising a plea in terms of section 106(h) of the Criminal Procedure Act (CPA) to state that the private prosecutor has no title to prosecute, as the nolle prosecui certificate is invalid or the person brought before the court is not relevant to it.

Mpofu also argued that although the president was not mentioned directly in the certificate, he was an accessory after the fact in failing to respond in his capacity to investigate the conduct of the NPA and the media for publicising confidential information.

Advocate Ngwako Maenetjie SC, representing Ramaphosa, on the other hand, only argued that if the president subordinates himself to a criminal trial court, it would harm his fair trial right and personal freedom, and that an interdict sought aims to prevent that harm, especially when the president is not mentioned directly in the nolle prosecui certificate. Then on January 16, Deputy Judge President Roland Sutherland handed down the judgment by the court.

The court held that based on case law there is no distinction between criminal courts and civil courts. There is only one court for streamlining of management of both civil and criminal cases. The appearance of the judges wearing red robes in criminal courts and black robes in civil court is for organisational convenience.

It further held that this is because superior courts have an inherent jurisdiction according to section 173 of the Constitution to rule that a case be brought to "constitutional compliant forum and in accordance to constitutional compliant statute provided for the adjudication of criminal cases" and therefore that section 106(h) of the CPA cannot be the only legal route to challenge the title of the private prosecutor to prosecute.

This argument was raised again in the hearing of an application by Downer and Maughn when Mpofu argued again that the applicants cannot approach the civil court for a remedy but must subordinate themselves to a criminal trial court, and advocate Steven Budlender, representing Maughn, argued that section 34 of the Constitution, which provides for access to courts, makes no distinction between a civil or criminal court. It only states that any person has a right to bring "any dispute that can be resolved by application of law decided in a fair public hearing before a court."